Allen Kachalia, Kenneth Sands, Melinda Van Niel, Suzanne Dodson, Stephanie Roche, Victor Novack, Maayan Yitshak-Sade, Patricia Folcarelli, Evan M. Benjamin, Alan C. Woodward & Michelle M. Mello, Effects of A Communication-And-Resolution Program on Hospitals' Malpractice Claims and Costs
. 37 Health Aff.
Allen Kachalia and ten co-authors’ new piece, entitled Effects of a Communication-and-Resolution Program on Hospitals’ Malpractice Claims and Costs, offers an insight to address one of the most daunting challenges that looms over the field of tort law—and, indeed, one of the most daunting challenges that confronts the “sister professions” of law and medicine more generally. The question is how to address the problem of preventable medical injury. In human terms, the problem is enormous. Roughly 35 million Americans are hospitalized annually, and the best evidence suggests that approximately 1% of those individuals will be victims of bona fide medical malpractice, while perhaps another 1.3% will be “preventably,” though not necessarily negligently, hurt by the care they receive. That adds up to some 800,000 individuals. Further, while many of these injuries are minor or transient, others are serious. Each year, 44,000 to 98,000 Americans die because of medical mistakes, which means that medical errors may cause more deaths per year than all other accident types, combined.
The medical malpractice system—the civil justice system’s attempt to address the above injuries—also takes a significant toll. The system’s direct cost is substantial: Administrative costs alone (in legal fees and insurer overhead) reportedly top $6 billion annually. Its indirect costs are considerable, as an abiding fear of liability reportedly impacts the tests physicians perform, the medication they prescribe, and the referrals they make, which contributes to “defensive medicine” (which is, itself, costly). And, the physicians who are sued are, by all accounts, deeply, and negatively, affected.
Nor is the situation particularly satisfactory from the injured patients’ perspective. For a host of reasons, only a miniscule fraction of those hurt by medical error (2% to 3%) ever seek compensation, even informally. When injured patients do initiate claims, many fall short: Doctors prevail in roughly three-quarters of medical malpractice jury trials, and, overall, approximately 40% of patients who retain counsel fail to recover a cent. And, even when compensation does come, it comes slowly and is often inadequate, particularly for the grievously hurt.
Understandably, unsatisfied with all the above, the past four decades have witnessed a flurry of med-mal-related reform activity. Some reforms—damage caps and contingency fee restrictions, most prominently—have been enacted. Yet, these reforms only tinker at the margins, and their social utility is dubious. Other reform ideas—such calls to adopt enterprise liability, a move to base liability on contract, rather than tort, principles, and proposals to jettison the traditional tort system in favor of no-fault regimes or specialized “health courts”—are bolder. But some of these reform ideas have been subject to harsh criticism, and, so far, none has taken root. Indeed, the med mal landscape is so bleak that one scholar has likened it to the “law’s Vietnam—an unpleasant quagmire of unending skirmishes and full-scale engagements” with, I would add, uncertain objectives, raised voices, and pointed fingers, all while the casualties mount.
Into this quagmire, enters a promising new study undertaken by a large team of many of the field’s most esteemed researchers. Recently published in Health Affairs and entitled Effects of a Communication-and-Resolution Program On Hospitals’ Malpractice Claims and Costs, the study offers a glimmer of good news. It finds that hospitals can disclose certain medical mishaps to patients and even apologize for the harm they inflict, without causing liability costs to skyrocket.
In the study, Allen Kachalia and ten co-authors examine the effect of four Massachusetts hospitals’ communication-and-resolution programs, CRPs for short. To understand the study, a brief primer on CRPs is necessary.
Fueled by swirling ethical concerns and buttressed by a desire for greater transparency and accountability, over 200 hospitals and health care organizations have adopted CRPs. Programs vary on the specifics, but the general idea is that, if a hospital adopts a CRP, it commits to “communicate with patients about adverse events; investigate and explain what happened; and, when appropriate, apologize, take responsibility, and proactively offer compensation” (P. 1836). The attraction of CRPs is obvious. At least in theory, the programs foster candid dialog between physicians and patients, promote timely investigations into the causes of injury (which might reveal golden opportunities for quality improvement), and, when warranted, offer a streamlined system to ensure fair, efficient, and prompt compensation.
Adoption of CRPs has been stunted, however, by liability concerns. Hospital administrators are well aware of the statistics above—and particularly the fact that, currently, a tiny fraction of those hurt ever seek compensation, even informally. Administrators are understandably concerned that, if their doctors start to confess their mistakes, and particularly if doctors or hospitals proactively offer compensation to those hurt, liability costs will rise, as a higher proportion of injured patients will seek recompense, and those who do will demand ever-higher amounts. But, while this liability concern has loomed large and has dampened some institutions’ interest in adopting CRPs, no one has really known whether the concern was theoretical or real. That’s where Kachalia et al.’s Health Affairs study comes in.
Starting in late 2012, four Massachusetts hospitals implemented a communication-and-resolution program specifically known as CARe (Communication, Apology, and Resolution). Consistent with the general CRP script, under CARe, evidence that a patient has sustained significant harm triggers an internal investigation. If the investigation reveals that the harm was caused by caregiver negligence, the matter is referred to the hospital’s insurer. Following the insurer’s review, the hospital then convenes a meeting with the patient and his or her family (and their attorney, if desired) to discuss next steps, which may include an explanation or apology, a waiver of medical bills, an offer of compensation, or some combination of the above.
By comparing the liability experience of four hospitals that implemented CARe against control hospitals that didn’t, and also comparing the four hospitals’ pre-CARe liability experience against their experience once CARe was in effect, Kachalia and co-authors assess CARe’s impact. Most prominently, they discover:
Although in theory, routinely offering compensation where negligence causes serious harm should mean that more injuries are compensated, and although the hospitals in our study adhered to the CRP protocol faithfully, total liability cost trends did not worsen, and trends in defense costs and rates of new claims improved.
The study is ambitious and rigorous, and its methodology is technologically sophisticated. Its finding, therefore, sheds welcome light on CRPs’ utility. Still, as the researchers forthrightly acknowledge, questions remain.
For starters, Kachalia and co-authors examine—and help to debunk fears regarding—the “cost” side of CRP’s cost-benefit coin. The study suggests that, contrary to the fears of some, the adoption and implementation of a CRP probably won’t cause a hospital’s liability costs to spike. But reforms are, and should be, evaluated based on both costs and benefits, and the benefit side of the ledger needs further elaboration. Some of the questions that must be answered include: Are the benefits believed to be associated with CRPs real? Or are they understated or, alternatively, exaggerated? Further, do these benefits actually accompany CRPs, even when the programs are implemented in messy real-world conditions? This question is important as some research suggests that, once researchers aren’t looking, some organizations’ commitment to CRP may become selective or halfhearted. Some organizations may follow the CRP script some of the time but not all of the time, or they may offer “transparency” but actually, in a given scenario, shade what is or is not revealed. Any lack of fidelity will affect the program’s utility.
In addition to the fidelity question, future researchers must also address what I’ll call the durability question. In particular, researchers must assess whether perceived improvements are lasting or merely ephemeral, and they must also investigate whether, as years go by (and the initial zeal that spurred the reform ebbs), the cost side of the ledger swells. This question is crucial, as Kachalia and co-authors understandably examined only the first four-and-a-half years of CARe’s implementation. Yet, past research evaluating other (admittedly different) tort reform efforts suggests that initial benefits tend to diminish as years go by, while certain costs trend upward. Only time will tell whether we will see such reversion here, but researchers must be alert to the risk.
Finally, when evaluating both costs and benefits, researchers should examine questions from the perspectives of all who may be affected by the reform effort, including but not limited to past and future patients. Three categories of questions must be addressed. First, do injured patients and their families believe the programs are fair, and how does satisfaction compare to claimant satisfaction within the traditional tort system? Second, are CRP compensation offers prompt, adequate, predictable, consistent, and equitable? Third and most crucially: Do CRPs promote or inhibit quality improvement? Do those medical errors that currently injure some 800,000 patients each year tick upward or downward when a CRP is in effect?
Still, the questions above and work that lies ahead do nothing to diminish the importance of Kachalia et al.’s analysis. In a battlefield that’s long been marked by more heat than light, in their sustained and sober analysis, Kachalia and co-authors are beginning to let some sunlight in.
Cite as: Nora Freeman Engstrom, Letting Some Light In: Resolving a Key Question Regarding Communication-and-Resolution Programs
(May 24, 2019) (reviewing Allen Kachalia, Kenneth Sands, Melinda Van Niel, Suzanne Dodson, Stephanie Roche, Victor Novack, Maayan Yitshak-Sade, Patricia Folcarelli, Evan M. Benjamin, Alan C. Woodward & Michelle M. Mello, Effects of A Communication-And-Resolution Program on Hospitals' Malpractice Claims and Costs
. 37 Health Aff.
1836 (2018)), https://torts.jotwell.com/letting-some-light-in-resolving-a-key-question-regarding-communication-and-resolution-programs/
Suicide has become an important public-health problem, leading Alex Long to revisit the unduly neglected question of whether tort law should recognize wrongful-death actions for cases in which the defendant’s tortious conduct caused the victim to commit suicide. After describing the increasingly worrisome trends—suicide is now the tenth leading cause of death in the country—Long insightfully constructs the historical, religious, and sociological motivations embedded in the tort doctrines, labeled the “suicide rule” by one jurisdiction, that ordinarily bar recovery for suicides. “Tort law’s historical treatment of cases involving suicide represents a combination of society’s traditionally negative views regarding suicide and tort law’s traditional concerns with foreseeability and expanding liability in cases involving emotional injury” (P. 16).
Long identifies “a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles” (P. 6). Long defends this approach, drawing on the principles that courts use to formulate the tort duty in cases of pure emotional distress. “Ordinarily, suicide will be outside the foreseeable scope of the defendant’s negligence” and therefore not subject to liability as per the traditional approach (P. 49). But if the plaintiff can prove “that the negligent conduct is especially likely to result in suicide,” courts should permit recovery for the wrongful death. (Id.) Long correctly diagnoses the problem—tort principles do not justify the suicide rule—although these wrongful-death recoveries will be more common than he concludes. The increased liability is fully justified in my view.
Relying on doctrines that originated in English law from the Middle Ages, courts ordinarily dismiss these wrongful-death claims as a matter of law. In nearly every jurisdiction, courts hold that suicide—subject to limited exceptions discussed below—is an unforeseeable consequence of negligence that absolves a defendant of liability for the wrongful death (though not necessarily for the predicate physical or emotional harms that caused the decedent to commit suicide) (P. 17). In addition, “[n]egligence defendants have had some success in asserting that suicide is an immoral or unlawful act and thus bars recovery” (P. 20). Some courts deny recovery for comparative-fault reasons, concluding that suicide “is more than mere contributory negligence and is of a higher culpability level than the defendant’s negligence.”
Courts recognize exceptions to the suicide rule if “the defendant’s negligence causes injury that results in insanity or delirium in a form that prevents an individual from understanding the nature of his act or that creates an irresistible suicidal impulse” (P. 22). In addition, some defendants (like schools and psychiatrists) may have the very duty to prevent the decedent from committing suicide, in which case the suicide could be foreseeable (Pp. 26-27). Finally, for liabilities based on an intentional tort (typically the intentional infliction of emotional distress), most courts permit recovery if the plaintiff can prove that the tortious conduct was a substantial factor in causing the suicide (P. 32).
Long’s article surfaces a host of interesting issues that cannot be adequately addressed here. I will instead focus on his primary proposal that courts should reject the suicide rule in favor of an approach that only asks whether the defendant’s tortious conduct was especially likely to cause the decedent to commit suicide.
In defending this approach, Long concludes that liability will still be exceptional because “experts with superior knowledge regarding suicide have been unable to develop a reliable method for determining those at high risk of suicide,” and so “the hypothetical reasonable person will ordinarily not be able to do better” (P. 37). The question, however, is not whether one can reliably identify whether a particular person will commit suicide. A negligent actor is liable for the foreseeable risks that cause compensable injury, and a foreseeable risk does not require knowledge of whether it will actually materialize in a particular case. A defendant, for example, can incur liability to cancer victims for having negligently exposed them to carcinogens, but at the time of the tortious behavior there ordinarily is no way to reliably determine which exposures will ultimately cause cancer.
The prevalence of suicide today often makes that type of harm foreseeable for reasons fully established by Long. By causing chronically severe pain or emotional distress, the defendant’s tortious conduct substantially increases the likelihood of suicide. “The reality is that the most common description of the mental state of those who have committed suicide is that they did not want to die; they just wanted the pain they were experiencing to stop, a seemingly rational decision to a person who otherwise sees no realistic end to the pain he or she is suffering” (Pp. 45-46). To be sure, the decedent’s reasoning may have been impaired, but under the majority rule “the plaintiff’s contributory negligence must be evaluated by using a subjective standard that takes into account the plaintiff’s own mental state, including any mental impairments” (P. 56, n. 368). Insofar as a victim’s chronic pain and the associated mental state significantly increase the likelihood of suicide, those factors make the suicide a foreseeable consequence of the defendant’s negligence.
To recover, the plaintiff must also prove that the defendant’s negligent conduct actually caused the decedent to commit suicide—the same inquiry that courts employ for determining the liability of intentional tortfeasors. “In practice, the substantial factor standard [for establishing causation] has not proven to be a particularly onerous requirement for plaintiffs” (P. 32). The same should be true for negligent tortfeasors.
Consider cases in which the proof already shows that the defendant’s negligence caused the decedent to suffer severe bodily injury with the associated pain and emotional distress that then allegedly caused the decedent to commit suicide. At this point, the plaintiff has established liability and an entitlement to compensatory damages for the predicate bodily injury. The causal problem accordingly reduces to the question of whether the negligence caused the full extent of the injuries alleged by the plaintiff—the wrongful-death damages for the suicideallegedly caused by the predicate (compensable) bodily injury. The evidentiary standard for establishing causation in the damages phase of the case is less demanding than in the liability phase. Instead of having to prove causation by a preponderance of the evidence, the plaintiff is only required to prove “the extent of the [tortiously caused] harm with as much certainty as the nature of the tort and the circumstances permit.” After the fact, we will not ordinarily know why someone took his or her life. That inherent uncertainty, however, should not bar recovery when the reasonably available evidence shows that the defendant’s negligence substantially increased the risk of suicide. For these reasons, the substantial factor standard has not been particularly onerous for plaintiffs seeking to recover from intentional tortfeasors; those reasons apply with equal force to negligent actors.
The foregoing analysis does not imply that the decedent necessarily bears no responsibility for taking his or her life. Such a determination is relevant to the apportionment of liability under comparative responsibility; it is not a sufficient reason to deny liability altogetherunder the suicide rule.
Established tort principles, therefore, support Long’s conclusion that courts should abolish the antiquated doctrines that limit liability for suicides. By demonstrating that the persistence of the suicide rule stems from the stigma and immorality that traditional conventions ascribe to these desperate acts, Long has made a valuable contribution to our understanding of tort law.
Kenneth S. Abraham & G. Edward White, Recovering Wagner v. International Railway Company, 34 Tuoro L. Rev. 21 (2018).
Featuring the memorable phrase “Danger invites rescue,” Cardozo’s opinion in Wagner v. International Railway Co. is engaging and beautifully written. The same can be said of Recovering Wagner v. International Railway Company (hereinafter “Recovering Wagner”)─the recent study of Wagner by Ken Abraham and Ted White (hereinafter “AW”). Through historical research principally into the litigation of the case, they generate an important new interpretation of Wagner. According to AW, Wagner forced Cardozo to confront what lawyers then and now would call a “proximate cause” question. Yet his opinion does not explicitly mention proximate cause (or duty, for that matter). Instead, it employs a notion of relationality of risk. Indeed, AW powerfully argue, the whole point of Wagner is that relationality of risk is far more important than the idea of a “natural and probable” sequence from breach to injury, or any kind of remoteness criterion, in determining whether a defendant should be held responsible in negligence for a plaintiff’s injury. Their larger point is that Wagner can be seen to encapsulate Cardozo’s powerful influence on American negligence law.
Abraham and White’s research confirms that Cardozo’s depiction of the facts in Wagner is largely accurate. I follow their judgment that quoting Cardozo’s account is the best way to re-acquaint readers with the facts of the case:
The defendant operates an electric railway between Buffalo and Niagara Falls. There is a point on its line where an overhead crossing carries its tracks above those of the New York Central and the Erie. A gradual incline upwards over a trestle raises the tracks to a height of twenty-five feet . . . Then comes a turn to the right at about the same angle down the same kind of an incline to grade. Above the trestles, the tracks are laid on ties, unguarded at the ends . . . On the bridge, a narrow footpath runs between the tracks . . . .
Plaintiff [Arthur Wagner] and his cousin Herbert [Wagner] boarded a car at a station near the bottom of one of the trestles . . . The platform was provided with doors, but the conductor did not close them. Moving at from six to eight miles an hour, the car, without slackening, turned the curve. There was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes to a bridge . . . Plaintiff walked along the trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he thought to find his cousin’s body . . . Reaching the bridge, he had found upon a beam his cousin’s hat, but nothing else. About him, there was darkness. He missed his footing, and fell (P. 437).
Wagner holds that a person injured while trying to rescue a person who was imperiled by the defendant’s negligence may himself recover from the negligent defendant. “Danger invites rescue” is widely understood to express the rule that, because it is foreseeable that someone will try to rescue another engulfed in a danger that the defendant negligently created, the defendant is liable to the rescuer if he is injured during the rescue attempt. AW are not especially concerned to contest this reading. Their thesis is that when we understand how the case was litigated at trial, and the precedents on which the case was decided, we learn a great deal about how Cardozo understood the basis of the defendant’s responsibility.
On first blush, Wagner actually looked easy for the plaintiff on the law but difficult on the facts. On the law, it looked easy because the New York Court of Appeals had already prominently decided that a rescuer had a claim against the source of the unreasonable risk imperiling the original victim. A key case was Eckert v. Long Island R.R., but there were other applicable precedents too, both from New York and elsewhere. The actual facts of this case made it more difficult for the plaintiff. First, the plaintiff Arthur Wagner may well have been drunk. Second, his cousin was rescued by others, and the plaintiff was not even looking in the right place when he was injured. Third, and in many ways most importantly, the act of going to rescue his cousin was not an impulsive leaping to aid (as in Eckert), but a deliberate decision about how and where to look. Relatedly, there was a controversy at trial regarding whether Arthur was accompanied by (or perhaps led by) an employee of the defendant.
The Railroad was understandably eager not to depend exclusively on the (then-complete) defense of contributory negligence, as it was simply unclear what a jury would find on that front. AW show how the Railroad’s lawyer, Edward Franchot, managed to use the aforementioned peculiarities of the fact pattern to generate another argument against liability (Pp. 36-39). Specifically, he persuaded the trial judge to instruct the jury that the alleged negligence of the Railroad in going around the bend and overpacking its train – the alleged negligence that caused Arthur’s cousin Herbert to fall in the first place – could not be the basis of Arthur’s action. Rather, the judge instructed the jury that Arthur could recover only a finding that the conductor had negligently instructed Arthur going on the trestle. This left the jury to weigh the conductor’s testimony and Arthur’s testimony with regard to what was said and done during the panicky moments following Herbert’s fall. Arthur’s testimony was evidently less credible to the jury than the conductor’s, so the Railroad won the case.
On appeal, Arthur’s lawyer, argued quite plausibly that the New York Court of Appeals’ own leading precedent – Gibney v. State – permitted liability to be predicated on the negligence of the railroad that led to Herbert’s need for rescue. Franchot distinguished Gibney by arguing that that the rescuer’s conduct in that case was an instinctive reaction, whereas in Wagner the attempted rescue was a deliberate act. The instinctiveness of the rescue in Gibney permitted the continuity between breach and injury that allowed a finding of proximate cause. Given the absence of comparable continuity in Wagner, Franchot argued that the railroad’s original negligence was not the proximate cause of Herbert’s rescue attempt. The judge’s instructions to the jury were therefore correct.
In his opinion for the Court of Appeals, Cardozo confronted this argument head on, pointedly rejecting it:
The defendant says that we must stop, in following the chain of causes, when action ceases to be ‘instinctive.’ By this is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened . . . We find no warrant for thus shortening the chain of jural causes. We may assume, though we are not required to decide, that peril and rescue must be in substance one transaction; that the sight of the one must have aroused the impulse to the other; in short, that there must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. If all this be assumed, the defendant is not aided. Continuity in such circumstances is not broken by the exercise of volition . . . The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion (P. 438).
Cardozo’s opinion thus abandons the notion that a deliberate act inserted into the causal chain destroys the possibility of liability. Notably, while he does not use the phrase “proximate cause” or “legal cause,” he does indeed use the phrase “the chain of jural causes,” and he rejects the idea of shortening this chain because of intervening volitional action.
More generally, Cardozo embraces a risk-based notion of the connection between the injury and the underlying risk-creating action:
The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid (citing Gibney). The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path . . . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man (Pp. 437-38).
AW’s article explains that Cardozo was, in effect, supplanting what was at the time the dominant way in which New York courts (and other courts) had formulated the proximate cause requirement: namely, whether the defendant’s carelessness had led to the plaintiff’s injury through a “natural and probable” sequence. Now the question is whether the injury complained of by the plaintiff was an actualization or realization of the risk negligently taken by the defendant (P. 57).
Abraham and White’s reading of Wagner as having effected a tacit change in proximate cause law also supports a longstanding Twentieth Century reading of another Cardozo opinion – that of Harvard Professor Warren Seavey in Palsgraf v. Long Island R.R. Seavey saw Palsgraf as a proximate cause case that hinged on Cardozo’s quiet substitution of a risk-rule conception of proximate cause for the prevailing natural-and-probable-sequence conception. What rendered “negligent” the LIRR guard’s pushing of the passenger was the risk of destroying the passenger’s package, not the risk of physically injuring a woman down the platform, Seavey observed. Liability in negligence requires a match between the risk and the injury. In Wagner, the risk of a rescuer’s injury is part of what made the Railroad negligent, so a plaintiff who suffered the realization of that risk has a claim based on the Railroad’s negligent conduct in rounding the bend with open doors.
Once they have drawn the connection with Seavey’s Palsgraf reading, AW arrive at their most striking scholarly claim: “We think the decision in Wagner contains virtually everything necessary to its more celebrated offspring, Palsgraf” (P. 56). They proceed to list these necessary ingredients: “the centrality of risk-analysis to questions involving what others had analyzed in terms of proximate cause”; “the causal-chain analysis that Judge Andrews would later employ in his Palsgraf dissent”; and the willingness to classify as a “matter of law” the question of which risks are associated with a defendant’s negligence. “In a very real sense,” they conclude, “it isWagner, not Palsgraf that is Cardozo’s seminal decision in this area of tort law” (P. 58). AW will not be surprised that I (a self-described Palsgraf maven) would wholeheartedly reject this particular conclusion, but that is a matter for another time; I concede that their case for Wagner as a Palsgraf preview is nicely laid out.
There are numerous reasons to regard AW’s article as essential reading for Torts professors. Among these are the article’s erudition and its reminder of the importance of detail in the analysis of canonical cases. There is also its recognition that relationality of risk can be (as it was in Wagner) a sword, and not just a shield (as it was in Palsgraf). Most importantly, AW’s “recovery” of Wagner flags for all of us the important historical truth that proximate cause analyses were once very different than they are today. Foreseeability and relationality of risk played a lesser role, while “natural and probable” and “directness” played a greater role. In this vein, we should remember that courts were not always comfortable including within causal chains the voluntary conduct of the plaintiff or of third parties. Unforeseeable wrongful conduct today may sever liability via the doctrine of superseding cause, but for a large part of the 20th century, a far broader range of voluntary conduct would have severed liability via proximate cause. In this former world, we would not have seen Tarasoff v. Regents of the University of California, or Kline v. 1500 Mass. Ave. Those progressive duty cases were arguably only possible because a relationality if risk conception of “jural cause” replaced a more mechanistic and naturalistic one. Seen through the prism of AW’s analysis, it was partly Cardozo’s achievement in Wagner that made this possible.
In basic tort damage doctrine, a person injured by a tort can recover lost wages. This means it costs less to harm some people than others. People who earn less, whether because of reduced educational opportunities, racism, geography, family responsibilities, or other factors, will suffer lower damages than people who earn more. Defendants (and insurance companies) will have to pay less to “make them whole.” This aspect of tort damages is in tension with, if not in contradiction to, the notion that—formally—everyone counts equally in torts. This tension rarely gets attention or critique, in part because tort damages are determined individually, usually through informal and private settlements
In one context of U.S. tort law, however, the relationship between damages and inequality is on the surface and subject to critique. When an injured individual lacks an earnings history, race-based statistical tables estimating wages, life expectancy, and work-life expectancy are still routinely used in calculating tort damage awards. African-American plaintiffs, as a result, receive lower damage awards than white plaintiffs in such circumstances. Many people are surprised to hear this practice endures, although scholars have criticized it for decades. Valuing Black Lives is the most detailed explanation yet published as to why the use of race-based tables in calculating tort damages is unconstitutional. It is a companion piece to the authors’ previous article, Torts and Discrimination, earlier reviewed in Jotwell. Valuing Black Lives is excellent. In this era of resurgent racism, it is also particularly timely.
A key question in tort damages, especially where a child is grievously injured, is how much the child would have earned if she had not been hurt. This question is particularly challenging because the child obviously does not have a personal earning history that could be used to estimate lost future earnings. Courts and experts often use race-based and gender-based tables to calculate future lost wages in such a situation. Yuracko and Avraham argue that the use of race-based tables to calculate damages disadvantages individuals and creates incentives for companies to disproportionately allocate risks to minority communities so as to minimize tort damages. They claim, for example, that it would be economically rational for a large delivery company to concentrate its routes and its risky drivers in African-American neighborhoods because the company would end up paying lower damages as a result. As they note, the use of tables ‘embeds effects of racial discrimination into individual tort awards and channels past levels of racial discrimination into predictions about the future.’ The authors painstakingly and persuasively argue that race-based tables are racial classifications when used in court. Further, tables ‘stereotype individuals and make predictions about individual preferences and proclivities based on group membership,’ much like racial profiles. Because tables operate as race-based classifications, their use will be subject to strict scrutiny as long as state action is present. Based on a detailed discussion of state action doctrine, the authors methodically show how judicial reliance on race-based tables to calculate tort damages constitutes state action. Then they carefully apply strict scrutiny and conclude use of the tables doesn’t pass muster. They close by highlighting important aspects of tort damages calculations that will not be remedied by simply discarding race-based tables. As noted above, an injured person whose education and employment opportunities have been stunted by racism will have lower lost wages than a more privileged, higher earning person who suffers a similar injury.Inequality rooted in race and privilege pervades our torts damage calculation regime. The authors provide no solution to this deeper problem; I hope they write an additional article which focuses on that topic. I also hope they focus on gender-based tables which are also still used but are not discussed in Valuing Black Lives (perhaps because of the different standard of review). Their analysis provides a strong and detailed foundation for a court to hold that use of race-based tables to determine tort damages is unconstitutional.
The article and the earlier Torts and Discrimination join a growing literature on race and torts. This literature goes beyond targeting use of race-based tables which is perhaps the only remaining overt use of race on the surface of tort litigation. Up until the 1960s judges generally mentioned the race of tort litigants if they were not white; there are hundreds of published tort opinions dealing directly or indirectly with race to which few torts scholars have paid attention. Now that race is absent from the surface of tort opinions, the topic is even harder hard to study. A race-based discount was clear from older opinions. Race-based devaluation probably persists in many contexts, such as settlement, that are exceedingly difficult to study. A fascinating empirical analysis published in 2016 argues that the failure of some Southern states to adopt reforms such as comparative negligence can be traced to race and geography rather than explanations such as economics. A recent international comparative analysis shows that the use of race-based and gender-based tables is neither universal nor inevitable. There is more work to do.
It is or should be widely seen as extremely objectionable that race-based tables are still used in tort litigation and the authors’ concentrated attention to this issue is welcome. Other aspects of race, racism and torts deserve more attention than they have received. It’s high time outstanding work like this gets center stage.
Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty
, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at SSRN
When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on “type of negligent acts” distinguished between “Use of Incompetent or Defective Instrumentalities” and “Want of Preparation”). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as “negligent failure to warn”.
Because the mission of the Restatement is to organize concepts latent in the common law, it is understandable that subsequent generations of reporters will see common themes between categories that were overlooked by their predecessors (and it is also possible that the law itself might evolve over time towards fewer principles as courts eliminate ad hoc categories). But reducing the number of rules, or principles, in the common law is not an unalloyed good. Debates still rage over whether the Restatement has, for all intents and purposes, removed duty as an element of the prima facie case in negligence in most cases of personal injury or property damage, and if it has, whether that move was salutary. Last year I reviewed for Jotwell an article by Prof. Stephen Sugarman calling for the merger of battery – an intentional tort – into negligence.
And now comes a proposal from Professors Ken Abraham and Leslie Kendrick to merge Chapters 3 and 7 of the Third Restatement, so that, instead of two general categories of duty in connection to physical harm, there will be just one rule of negligence for risk creation and there would be no need for a rule concerning affirmative duties. I will review Abraham and Kendrick’s arguments for the merger, suggest a few criticisms of their arguments, and conclude by evaluating the costs and benefits of pursuing yet another round of doctrinal deflation.
Abraham and Kendrick’s argument – which they recognize as somewhat radical – is that the category of “affirmative duties” ought to be abandoned. Their recommendation, in terms of the Restatement, is that §§ 37 – 43) be eliminated, and any claim by injured victims for physical harm that would have arisen under these sections come under the relevant sections elsewhere in the Restatement. Since the article is mostly a critical project, Abraham and Kendrick do not address where the orphaned causes of action would go, and this should not be held against them. Presumably, they would find a home in Chapter 3 (“The Negligence Doctrine and Negligence Liability” or Chapter 9 (“Duty of Land Possessors”).
Abraham and Kendrick’s argument is simple and familiar to anyone who has tried to teach torts: The line drawn between act and inaction is vague, and because it is vague, the doctrinal rules that purport to rely on that line are either over-inclusive or under-inclusive. As a descriptive matter, I agree with Abraham and Kendrick, and a brief tour of their argument will induce, I suspect, in many torts professors a familiar sense of frustration with the common law rules in this area.
The Third Restatement preserves a categorical distinction between duties grounded on risks of physical harm “created” by the defendant (§ 7) and those risks of physical harm not created by the defendant (§ 37). I will note in passing that Abraham and Kendrick organize their argument by comparing § 7 and § 37, but that § 37 deals with risks of emotional harm not created by the defendant as well as with risk of physical harms. Their focus only on the treatment of affirmative duties in relation to risk of physical harms leaves open the question of how their analysis would apply to “pure” negligent infliction of emotional distress unconnected to physical imperilment (e.g. Section 47(b)). As an initial matter, I will only address the topic they have chosen for themselves – affirmative duties in relation to physical harm.
In tort law, it is commonplace for terms used frequently by laypeople to turn out be vague when those terms are put to work in tort. The “reasonable” person is a prime case in point. Modern doctrine, it could be argued, usually handles the problem of vagueness is ways that do not produce unnecessary complexity. One way tort law deals with vagueness is to delegate the final act of line drawing to the factfinder. Not so with the line between risk creation and risk non-creation. The line is drawn as a matter of law, note Abraham and Kendrick (P. 53), and the conclusion that a risk was created by the defendant – or not – has significant consequences for the parties. If the court holds that the risk was created by the defendant then it falls under the “standard” rules of negligence for physical injury, which impose a very broad duty on the defendant. As the Third Restatement says in § 6, comment f, “[i]n cases involving physical harm, courts ordinarily need not concern themselves with the existence or content of this ordinary duty. They may proceed directly to the elements of liability.” However, the reverse is true if the court determines that the defendant did not create the risk. Unless the plaintiff can demonstrate that the risk falls into one of three limited categories, the defendant will be held to have had no duty to reduce the risk at issue, or mitigate any harm it may cause.
Abraham and Kendrick claim that there are descriptive and normative dimensions to the vagueness problem described above. (P. 10.) Yet, according to Abraham and Kendrick, the point of their article is not to criticize the ultimate holdings of any of the many courts that have applied the distinction between risk creation and risk non-creation. They are careful to emphasize that their project does not entail a normative argument that any particular case (including such chestnuts as Tarasoff orMoch) ought to have been decided differently. Their critique is conceptual. Abraham and Kendrick believe that there is no bright line separating affirmative duty cases from negative duty ones. Dispensing with the distinction might bring valuable clarity to our legal categories but it would not necessarily change the outcome of any of the cases they discuss.
The conceptual critique can be seen best in their treatment of cases involving the duties owed by landlords to tenants and other entrants in regard to criminal assault. (Pp. 12 – 14.) These cases, such as Kline v. 1500 Mass Ave. Apartment Corp., are treated as affirmative duties by the Third Restatement in § 40. Abraham and Kendrick’s problem with Kline is not with the outcome – a finding that there was a duty – but with the rationale for the duty provided under § 40. § 40 describes a situation where (1) the defendant did not create the risk that harmed the plaintiff but (2) there was a special relationship between the plaintiff and the defendant. Abraham and Kendrick’s conceptual critique is twofold: first, the Restatement’s reasons for holding that a special relationship exists between landlords and tenants and other entrants are conclusory and, second, that the conclusion that a landlord doesn’t create risk in cases like Kline is question-begging. Abraham and Kendrick think that the landlord, by maintaining the property, creates the opportunity for criminal assault on that property (“landlords . . . create the very conditions under which risk to the individuals with whom they deal may arise” P. 52.) and hence participates in creating the risk of criminal assault.
If the landlord in Kline created the risk, then the case should have been analyzed under § 7 or § 39. Under § 7, the landlord would owe a duty if his or her unreasonable conduct created the risk of criminal assault. Under § 39, the landlord would owe a duty because, despite the exercise of reasonable care, the relevant conduct created a continuing risk of physical harm that the landlord could prevent or minimize. In neither case would the court in Kline have to resort to finding a special relationship between the landlord and the victim. According to Abraham and Kendrick, given the breadth of § 7 and § 39 (negligent risk creation and non-negligent prior risk creation), duties based on special relationships (§ 40) end up being a fifth wheel.
Abraham and Kendrick’s treatment of the third category of affirmative duties, the duty to perform a gratuitous rescue reasonably (§§ 42 – 44) is extremely brief. This is probably because they see these duties as clear cases of risk creation, and therefore not true cases of affirmative duty. The bulk of their argument is devoted to showing that despite its many subsections, only one special rule for affirmative duties is needed to explain the doctrine – the rule concerning duties arising from prior risk creation (§ 39).
It must be observed that Abraham and Kendrick choose a rule for affirmative duty that is often viewed as having the most limited scope of application, as compared to the other two rules (affirmative duties based on special relationships and the duty to perform a gratuitous rescue reasonably). And although they concede that courts don’t actually hold that landlords in the sort of cases discussed above are found to have affirmative duties under § 39, they insist that this is a mistake. Abraham and Kendrick point to Illustration 1 of § 39 to prove their point. This illustration describes a golfer who, after carefully scanning the course and carefully hitting a long drive, sees a stranger walking towards the point where her ball is likely to land. (P. 17.) There is a duty to warn says the Restatement, even though the golfer was careful in every respect. If the golfer has a duty to warn because she non-negligently created a risk which imperils a foreseeable victim, then the landlord in Kline also owes a duty, and for the same reason.
The overall conclusion of Abraham and Kendrick’s article is that almost all of the cases that the Restatement breaks off from §7 are really instances of what they call “prior risk creation” described in § 39. For Abraham and Kendrick, Chapter 8 contains two mistakes. The first is its failure to see that if it needed to exist at all, it would only need one rule – the duty to take reasonable precautions to protect others from the consequences of prior risks one has created non-negligently. The second mistake is to fail to see that there is no need to have a special rule for affirmative duties based on prior risk creation at all. In other words, § 39 can be collapsed into § 7 (and vice versa). They say this quite clearly on P. 18.
“Prior risk creation” threatens to transform most negligence cases into affirmative duty cases. Many standard negligence cases assume that the defendant had a duty to anticipate that his conduct might impose risks on others and to take reasonable precautions to prevent this. If this constitutes an “affirmative” duty of anticipatory risk reduction – if it essentially turns every case into a rescue case –then there is no distinction left between negative and affirmative duties.
This second mistake is based on the naïve belief that tort law should (and can) distinguish between conduct and non-conduct. While some might think that the line exists but is vague, Abraham and Kendrick don’t think there is a line at all. They assert: “All conduct creates some risk of harm” (P. 48, emphasis added.) The real meaning of this statement is that by choosing any course of action (including inaction), one is engaging in risk producing conduct, since at every moment one is potentially, no matter how remotely, in a position to affect the risk of harm faced by another. The “conventional duty of care [§ 7] often involves minimizing or protecting another against a risk of harm whose source is not the defendant’s negligence” (P. 45.) Of course, in much of a person’s daily life the practical opportunity to reduce the risks faced by others is so minimal as to be almost invisible, but that does not undermine the point that, in theory, there is always a potential opportunity to mitigate another’s experience of risk. The choice to do nothing is “conduct”. The choice to do something is “conduct”. All choosing is conduct, and since “all conduct creates some risk of harm,” every choice may, in theory, may create a risk to which another is exposed.
The viewpoint that “all of life is conduct and all conduct produces risk to others” is illustrated by Abraham and Kendrick with the following example. Driver, through no fault of her own, is confronted with a pedestrian entering into the street. Sidewalk User sees the pedestrian at the same time. Abraham and Kendrick insist that there is no reason to evaluate Driver’s response to the pedestrian under § 7 (with all the attendant issues of comparative fault) and Sidewalk User’s response under § 39. They have no objection to the likely outcome that today’s doctrine would produce (Driver likely liable; Sidewalk User likely not liable) but they insist that, since Sidewalk User’s “conduct” potentially created risk (since Sidewalk User could reduce the pedestrian’s risk of injury) the question of duty should be analyzed under the part of the Restatement at the question of duty for Driver.
The elegance of Abraham and Kendrick’s approach is that it deflates so many categories with a single blow. Of course, there is no reason to have three exceptions to the no affirmative duty rule covered in Chapter 8: Once a defendant’s ex ante opportunity to reduce another’s risk of injury is deemed to be an act of potential risk creation, the obligations imposed by special relations, gratuitous undertakings and the non-negligent creation of a continuing risk can be fused into a single class of conduct. Further, since the test of conduct is purely based on circumstance – whether one is in a position to reduce the risk of injury to another – any focus on conduct prior to the decision to reduce risk to another is irrelevant, and so the distinction between conduct and non-conduct at the point of that decision is erased.
Obviously, it is a serious question whether the concept of “conduct” adopted by Abraham and Kendrick has much currency in everyday language or the moral conventions of the societies to which the Restatement is addressed. In moral philosophy, their position is most closely associated with act-utilitarianism. In tort theory, there is a superficial connection between their account and a simplistic version of Calabresi’s cheapest cost-avoider. After all, Calabresi did, for rhetorical purposes, hypothesize that anyone who could most cheaply reduce the cost of car accidents ought to be held liable in tort for those accidents. But Calabresi was making a point about the relationship between strict liability and negligence, and Abraham and Kendrick claim to be offering an interpretation of negligence law. Therefore, it makes sense to evaluate their proposal from the perspective of their target, which is a reconstruction of negligence in the common law. I want to conclude with a much more limited critical observation.
As mentioned above, Abraham and Kendrick do not explicitly call for significant changes in liability judgments. They are calling for a significant change in legal process. They note that, once the ad hoc segregation of a case like Pedestrian v. Sidewalk User is abandoned, the case against Sidewalk User will be handled by the same process as the case of Pedestrian v. Driver. In the modern era of the Third Restatement, that means that, unless § 7(b) is invoked, the liability decision will depend on a factual judgment about breach, causation, and proximate causation. This is the clear implication of the statement that “prior-risk-creation cases can be more simply and more accurately be seen as asking whether the defendant exercised reasonable care under all the circumstances” (P. 54, emphasis added.) Abraham and Kendrick mention that in some cases, like Pedestrian v. Sidewalk User, the court will exercise its “tools for policing the outer-boundaries of fact-finding” to routinely find for Sidewalk User. (P. 53.)
My point is not that there is any reason to distrust the capacity of courts to use their supervisory power over fact-finding to preserve the status quo’s consensus that the defendants who today are found not liable under Chapter 8 will continue to be found not liable. It is rather, to observe that it is just as likely that many of the defendants who today are found not liable under Chapter 8 will be diverted into § 7(b). § 7(b) states “[i]n exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.” It was added, of course, in response to the concern that, by adopting the view that there was a “ordinarily” a duty to all with regard to the creation of unreasonable risk (§ 7(a)), judges needed some way to block plaintiffs from asking whether the defendant “exercised reasonable care under all the circumstances” as a matter of law in some familiar classes of cases.
Even if one were persuaded that the conceptual deflation of the word “conduct” is defensible, I suspect that it will not achieve Abraham and Kendrick’s aim of removing complexity from the Third Restatement. It is just as likely that they have done nothing more than moved a difficult problem from one chapter to another.
For the past century, the car accident has served as the paradigmatic (über-?) tort. What does this tell us about tort law’s past, present, and future? Nora Freeman Engstrom’s elegant and informative When Cars Crash offers some highly illuminating reflections on this question.
Engstrom starts with the facts. In the U.S., millions of car crashes each year generate upward of 30,000 fatalities and countless injuries. Only heart disease and cancer account for more life-years lost, and the toll is particularly severe for teens and young adults. On the litigation side, many more lawsuits are filed, and more dollars paid out, for car accidents than for any other type of accident. Car wrecks also appear to generate a higher percentage of frivolous or at least overstated claims—think here of the stereotypical “whiplash” plaintiff. Thanks to the presence of settlement formulae established by repeat players, including plaintiffs’ lawyers and insurance adjusters, these suits tend to be resolved quickly and cheaply. When trials happen, they are brief and straightforward. Car accident plaintiffs who go to trial win more than half the time but generally recover modest amounts—$16,000 on average.
So the first lesson is that, even within the domain of accident law, suits for car crashes operate in distinctive ways. The second moral of the story, for Engstrom, has to do with tort reform. Roughly half a century after workers’ compensation statutes displaced a great deal of negligence litigation over workplace accidents, the next great step was supposed to come in the form of auto no-fault. However, after some enthusiasm and successes in the early 1970s, the movement stalled. With due credit to Gary Schwartz, Engstrom first notes that no-fault’s failure to sweep the nation was nonetheless important to the development of negligence doctrine: in an effort to weaken the campaign for no-fault, auto insurers dropped their resistance to the shift from contributory negligence to comparative fault. She then entertains an intriguing counterfactual. Suppose auto no-fault had taken root nationally. Along with workers’ compensation, would this have spelled the death knell for tort law as we know it? What would have counseled against the adoption of similar plans for medical errors, slips and falls, and product-related injuries?
Engstrom next considers the importance of automobile accident litigation to doctrinal development. She observes that the modern torts canon is filled with opinions rendered in car accident cases: MacPherson v. Buick, Baltimore & Ohio Railroad v. Goodman, Pokora v. Wabash Railway, Henningsen v. Bloomfield Motors, and Dillon v. Legg, to name a few. She also suggests that negligent entrustment claims (involving defendants who allow incompetent drivers to use their cars), as well as decisions holding owners who leave their keys in the car liable for accidents caused by thieves, made an important contribution to the emergence of the category of claims that Robert Rabin has dubbed “enabling torts.”
Finally, Engstrom observes that close attention to negligence litigation over car accidents confirms the suggestion made by some scholars that the tort system has distinctive contributions to make even in a heavily regulated area such as auto safety. Here, she focuses on litigation brought against GM by the parents of Brook Melton, who was killed in 2010 in the crash of her Chevrolet Cobalt. Thanks to the diligence of Melton’s parents and attorney, it was discovered that, for several model years, Chevrolet—with the knowledge of at least some of its engineers—had installed a defectively designed ignition switch. The defect allowed car keys attached to heavy key chains to slip out of the ignition while the car was operating, thereby disabling its power steering, brakes, and airbags. Although the relevant regulatory body (NHTSA) was aware of data suggesting a suspicious pattern of air bags failing to deploy in Cobalt accidents, it dithered. As a result of the Meltons’ suit, GM incurred a substantial fine, fired numerous employees and reorganized its engineering division, and implemented a privately run scheme to compensate victims. Here, and presumably elsewhere, Engstrom suggests, it is old-fashioned negligence litigation that is needed to bring to light information crucial to deterring wrongdoing, compensating victims, and enhancing safety regulation.
The topic of When Cars Crash is an important and timely one, given (as Engstrom notes) what may prove to be the impending transformation of motorized transportation through the use of autonomous vehicles. Moreover, in its fair-minded and illuminating comparison between tort and non-tort alternatives in the car accident context, it reminds us of the continuing value of the law-and-society approach to tort scholarship. Like her colleague Rabin, Engstrom in her work combines historical erudition, institutional sensitivity, and superb judgment, while providing a remarkably clear view of a complex yet fundamental topic.
While I find Engstrom’s observations and conclusions largely convincing, I would push back on some. For example, I don’t agree that the “enabling torts” category was forged in the furnace of car accident litigation. But that’s mainly because I would deny that there is any such category. Indeed, as Ben Zipursky and I have detailed elsewhere, several types of car-accident cases— including cases in which cell-phone manufacturers and banks that lend money for the purchase of automobiles are categorically spared from liability for ‘enabling’ negligent driving—indicate that use of the label “enabling torts” involves a vast and distorting overgeneralization.
Predominantly, however, Engstrom’s insightful inquiry leaves me inclined not to quibble but to join in by considering other ways in which the primacy of the auto accident has mattered to the development of tort law. At the risk of being myopically academic, I would suggest that car crashes have cast an equally long shadow over tort theory. Although the seed of the idea was planted before the heyday of the motorcar, the notion that modern tort law just is accident law surely owes a lot to the prevalence of litigation over car accidents.
Here’s one way to make my point: Judge Guido Calabresi’s landmark book could easily have been titled “The Costs of Car Accidents.” Recall the opening passage of its first chapter: “The last few years have seen a rebirth of interest in accident law. Popular reaction to the increasing number of automobile accidents and rising automobile insurance rates, as well as attempts by some insurance companies to deal only with preferred risks, has made automobile accidents and insurance controversial political issues.” Clearly, Calabresi was writing in reaction to car accidents and to the emergence of auto no-fault plans. Equally clearly, his thinking partook of the regulatory mentality of the “Great Society” era. On this approach, one starts with a social problem—here, the problem of car accidents—then figures out what technologies, legal or otherwise, can best solve it. Liability, Calabresi argued, is such a technology.
Like rubbernecking motorists, many contemporary tort theorists have been badly distracted by car accidents. Fundamentally, tort law is about wrongs, not accidents or losses, and tort theory is about something more than the choice between negligence and strict liability, or between negligence and compensation systems. It is one thing to recognize that, empirically, the car accident has for decades been the “it” tort, and that such accidents often involve the commission of the particular wrong of negligence. It is quite another to suppose that negligence law – not to mention tort law as a whole, which covers everything from battery and defamation to conversion and fraud – is best understood as law for the deterrence of accidents and the compensation of accident victims.
Of course, the tort of negligence is frequently committed by means of conduct—including momentarily inattentive or aggressive driving, or the production of vehicles that turn out to be unreasonably unsafe—that is not highly culpable or blameworthy. (Often, however, it does involve grave misconduct, such as driving while seriously intoxicated.) The lesser culpability of standard instances of car-related negligence, combined with the use of routinized claims-resolution processes, renders superficially plausible the thought that a body of tort law dominated statistically by car accidents cannot be a law of wrongs. Still, the thought is mistaken. Even when not punishable or highly blameworthy, careless driving that injures another is the violation of a substantive standard of safe conduct set by courts out of concern to protect basic human interests, and to reinforce and clarify equally basic correlative responsibilities.
It is no “accident” that parents and teachers emphasize even to very young children the importance of being careful not to injure one another. Taking care not to injure is a fundamental form of moral responsibility; one that reflects the fact that, as we go about our lives focusing largely on our own interests, we must nonetheless give due regard to aspects of others’ well-being. And, of course, when children reach driving age, these lessons about taking care are only amplified, for driving is among the most dangerous activities of which the vast bulk of ordinary citizens partake. It is thus not the least bit surprising to find that a duty to avoid injuring others through imprudent conduct, including a duty to avoid injuring through imprudent driving, is a wrong not only in our positive morality but a wrong recognized in our law. When a car-accident victim sues for negligence, just as when a plaintiff sues for battery or fraud, she is not acting as a private attorney general, nor is she applying for benefits from an accident-victim relief fund. She is exercising the legal power that tort law confers on victims of the legal wrongs that it recognizes to obtain redress from those who wrong them.
Omri Ben-Shahar, "Data Pollution,"
University of Chicago Public Law & Legal Theory Paper Series, No. 679 (forthcoming 2018), available at SSRN.
What was the nature of the harm when data on 143 million Equifax consumers was stolen? More generally, what is the problem with personal data use and misuse by commercial players? The most immediate answer: privacy, individuals’ privacy interests are infringed. But then the question becomes what is the problem with infringing one’s privacy? Here, the answer usually is that infringing one’s privacy infringes upon her autonomy, dignity, emotional wellbeing, and such. To these non-monetary harms, one can add various monetary harms such as monetary losses associated with identity theft and other economic losses. These personal harms have led privacy scholars to focus on the private and personal aspects of data breaches. This, in turn, has naturally also led them to focus on private law solutions, such as tort and contract law-type protections for individual’s privacy interests.
However, despite years of attempting to combat irresponsible data sharing and handling, the problem persists. People treat their private personal information as if they do not much care about it. They may trade it quid pro quo for access to various services from navigation and communication services on their cell phones to participation in social networks, or even just to play Fortnite. And yet, when asked about how important privacy is to them, people overwhelmingly claim it matters a lot. Similarly, when people sue for damages for data breaches, they claim they suffered significant losses. The gap between what people claim (privacy matters) and what they do (sell it cheaply) is the so called “privacy paradox.” How can this paradox be resolved?
Some scholars have suggested that the gap stems from the fact that people are misinformed, irrational, or rationally misinformed or even rationally irrational. In a brand-new paper titled “Data Pollution,” Omri Ben Shahar offers a different solution.
In “Data Pollution,” Ben Shahar shifts the focus of data breaches from the private harm suffered by individuals whose information was used to the societal harm writ large. And the harm to society Ben Shahar has in mind is not at all the aggregate harm of the class of individuals harmed, nor is it an abstract, derivative harm stemming from the emerging distrust of individuals in private or public institutions. Rather, it is a direct and concrete harm to the public ecosystem. Indeed, the social harm might occur even when individuals suffer no private harm,or even benefit from willingly sharing their private data.
How can it be? Think about the potential harm to the integrity of the American election system as a result of Facebook data-share with Cambridge Analytica. The individuals whose data was shared might be personally happy about the data share, yet the truly troubling problem was to the American democratic ecosystem. Or think about users of the Strava fitness app who share their running trails with the world, not realizing they were revealing locations of secret military bases, and therefore harming national security interests. This type of harm, Ben Shahar argues, stems from the fact that data is hazardous and if not handled well, might create dangerous “data pollution.”
When data misuse is viewed less as a personal harm to the privacy interest of individuals and more as a social harm to the public sphere, the paradigm shifts. Thus, according to Ben-Shahar, policy makers’ focus should not only be on the best ways to protect individuals from commercial players in the public sphere, but also on the best ways to protect the public sphere from individuals sharing their personal data with commercial players. The problem, in other words, is not just that commercial players trade individuals’ private data without adequately compensating them in an ex-ante user agreement, a fact that can be explained by individuals being misinformed or irrational. Nor is the problem just that commercial players mishandle individuals’ private data without adequately compensating them in an ex-post tort suit, a fact that can be explained by the difficulty in proving causation, estimating the harm, etc. Rather, according to Ben Shahar, the problem also is that private individuals trade their own private data at a price which does not reflect the negative externalities they create. It is this last feature – the negative externality – which is Ben Shahar’s main contribution to the literature and which will be my focus here.
“Data are to this century what oil was to the last one.” This quote opens Omri Ben-Shahar’s new thought-provoking paper. Data is the fuel of the information economy and like fuel in the oil economy, data pollutes, and it pollutes the digital ecosystem in ways which directly disrupt the public interest. For years, privacy advocates have spent much energy unsuccessfully trying to raise people’s awareness to the privacy interest in their own data, while not spending any energy raising people’s awareness to the social problem of data pollution. And yet, the external social costs associated with shared data might be,sometimes at least,much larger than the private costs.
It is as if policy makers had warned people about the fire hazards from using household kerosene lamps and had not warned them about the contribution to global heat from black carbon emissions. Only that in the data pollution case, unlike in the kerosene case, the social harm from the emission might be much more significant and more dangerous than the private harm to any individual.
The external costs of data emission are neglected any time individuals agree to various user agreements; thus, causing the sale of the private data to be at a price which is lower than the socially-optimal price. The external costs of data emission are also neglected when individuals demand compensation after a privacy breach, thus causing the wrongdoer to pay compensation which is lower than the socially-optimal level of compensation. As a result of these two problems, the level of information which is shared by individuals is excessive, just like pollution. The analogy to pollution and externality is what helps us better see the problem as it really is.
The analogy to pollution is of course not one-to-one; there are several differences between data pollution and industrial pollution. For example, there are two major types of externalities in data pollution, only one of which also clearly exists in industrial pollution. The first type is similar to the harm in industrial pollution: shared data can be aggregated and used or misused in ways which affect the public interest at large. The second type of externality is on other users. This type is unique to data pollution—individuals often share information not just about themselves, but also about others who do not want their information to be shared. An example would be when individuals agree to share their contacts. Perhaps the closest analogy from “real” pollution here is second-hand smoking, where people ignore the costs they incur to friends and family members near them.
Another difference is that data pollution does not only create negative externalities, it also creates positive externalities (think about predicting flu epidemics by looking at google pharmacy searches). Indeed, data collection is among the most productive activities of the 21st century.
Still, the analogy is helpful, and not just in providing a fresh and helpful re-conceptualization of data misuse problems. The analogy assists in analysing potential policy solutions. Data misuse can be regulated by policies long used to control industrial pollution, such as emission quotas, Pigouvian taxes, and legal liability. Indeed, one should not be surprised that private law tools, such as contract and torts, were unable to control the social problem of data pollution. After all, they failed to control industrial pollution as well. And they failed, Ben Shahar argues, primarily because they cannot handle externalities well.
The analogy to industrial hazards pertains not just at an abstract level, but also in specific details. What is the equivalent of quotas imposed on polluters? Restrict what data can be collected, from whom, by whom, for what purposes and for how long. Sounds crazy, right? But this is exactly what European regulators do. What about a Pigovian tax? Ben Shahar proposes, contra to current practice and scholarship, to tax individuals who share personal information quid pro quo for various services. No more free access to cable TV in return for allowing cable companies to collect data on subscribers. A tax would make subscribers (and cable companies) internalize the social external cost associated with the emission to the digital sphere of subscribers’ personal data. And, what about liability for data breaches? Because, unlike physical spills, data spills cannot be cleaned up ex-post. Ben-Shahar proposes imposing liability which equals the expected social costs of the spill, hopefully generating enough deterrence to prevent these spills from occurring in the first place.
Occasionally, the analogy can only be pushed so far. For example, there is no equivalent, yet, in data pollution to cap-and-trade in industrial pollution. Since the objective is to prevent massive data from being accumulated in the hands of a few players, policy makers should forbid players from trading data with each other. Rather than cap-and-trade, policy makers should enforce a strict cap-and-don’t-trade policy. Or, alternatively, since accumulation of data in the hands of the few is analogous to the problem of “hot-spots” in industrial pollution, there is even more that can be borrowed from the regulation of industrial pollution to the regulation of data pollution.
What is Ben Shahar’s preferred tool for combating data pollution? Readers who want to know that are left to find the answer themselves. Instead, in the space left for me here, I will make two comments.
The first comment has to do with the insight that private individuals are themselves not just victims, but also wrongdoers—they are polluters. True, the magnitude of the harm they can create is much smaller than the potential harm of data aggregators, but still… they are polluters. Recognizing that, recall that Ben Shahar proposes a tax on individuals who data-share. But taking the idea of end-user pollution seriously brings to mind another solution: end-user liability.
Consider a case of an individual who clicks on a malicious link, which enables hackers to install ransomware on his contacts’ computers. As a result, some of his contacts need to pay thousands of dollars to free their computers. The law usually will not find the individual liable. But why not? One potential answer is that end-users lack the expertise to protect their computers effectively as well as lack the resources to pay damages. What is missing from this answer is the availability of insurance, perhaps even mandatory insurance, for all online users. Insurance might help individuals protect themselves and others not just by providing coverage, but also by offering technical means to prevent the losses before they occur as well as the technical help to mitigate them after they have occurred. With insurance, it is no longer clear why end-user liability is not currently an option.
My second comment tries to push the pollution metaphor even further from the context of data into other contexts. In a recent working paper, my co-authors and I used the pollution metaphor in the context of civil procedure. Yet here, I would like to use it in the context of discrimination.
Consider a minority religious student group, which organizes an event on university grounds. The group announces that seating will be separated by gender. Should the university approve the event under these terms? This is not a hypothetical example, but it is based on real events that happened recently in the U.K. On the one hand, gender-separated events infringe upon notions of equality as by now we are accustomed to thinking that separate but equal is usually not equal. On the other hand, what if most members of the student group (both men and women) prefer gender-separated seating? Should we not respect their preferences?
Policy makers who want to forbid gender-separated seating can do it in one of two ways. First, a paternalist approach, where they basically ignore the preferences of the group members under the assumption that their consent to separated seating is not free, well informed or rational. Second, policy makers may choose to protect a minority-within-the-minority, which prefers gender-mix seating but is subject to social pressures to comply with the more extremist gender-separated agenda. In the U.K., the Equality and Human Rights Commission has forbidden such events (with some exemptions for religious prayers) exactly on these grounds.
Both ways are problematic. Being paternalistic towards group members by arguing they are misinformed, irrational or not free is problematic exactly because it is…paternalistic. And, defending the minority-within-the-minority is problematic because it is not always clear that there is such a group at all. And yet, our intuition many times is to forbid such events.
Adopting the pollution approach to discrimination exposes the problem with having segregated events on university grounds even when the group members want it. It reveals that “the toxicity from discriminatory treatment degrades the environment also for those not discriminated.”(P. 8.) Segregation (on racial, gender or other forbidden grounds) pollutes the university grounds for the rest of the community. It is akin to a public “moral nuisance.”
Ben Shahar’s “Data Pollution” is an insightful paper. Every time I thought Ben Shahar could not possibly push the analogy to environmental hazards further, I discovered I was wrong. It remains to be seen if others will find it a useful conceptualization of the problems associated with the use and misuse of personal data by commercial players as much as I did.
Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts
, 104 Cornell L. Rev.__ (forthcoming 2018), available at SSRN
In The Puzzle of the Dignitary Torts, Ken Abraham and G. Edward White return our attention to a domain of tort law they rightly describe as neglected, namely, the “dignitary torts”. In our time, the term is casebook catchall for an arguably heterogeneous collection of intentional wrongs— “offensive” battery, defamation, false imprisonment, intentional infliction of emotional distress (IIED) and the four privacy torts (intrusion upon seclusion, public disclosure of private facts, false light, and commercial appropriation). The term is a taxonomic category, and little more. It was not always so. For the first two-thirds of the twentieth century, the “dignitary torts” were a subject of sustained scholarly and practical interest. In the 1970’s they vanished from the scholarly radar and have not returned. In the courts, the long staccato expansion of these torts was halted by New York Times v. Sullivan and its progeny. New York Times v. Sullivan breached the wall that had insulated “private law” doctrines from public law criticism. Private law became another instance of state action and the dignitary torts became subject to constitutional scrutiny and curtailment insofar as their commission involved expression. In our time, the category endures almost untouched, but in so enduring it has become a hollowed-out husk of its former self. “Dignitary torts” is now just a hand box, a convenient pigeonhole which enables us to group together a number of distinct wrongs for purposes of classification and exposition. Nothing more is now said about “dignity” as a concept, or as a value, or as an overarching interest, which either captures a latent unity among these wrongs or identifies a common thread which ties the torts together. And the dignitary torts no longer struggle forward. They stand now in a defensive crouch, awaiting further constitutional confinement.
Abraham and White rightly think that there is an important story here, and they tell that story in a rich, illuminating, and provocative way. The history of the dignitary torts is indeed a puzzle. Why did scholarly interest in them disappear? Why are they still dormant even though dignity has built up a head of steam in both international human rights law and domestic legal developments such as same-sex marriage and the more general recognition of the dignity of LGBT persons? The Puzzle of the Dignitary Torts offers answers to these questions, and more. It also explores the concept of “dignity” and advances a jurisprudential argument that the dignitary torts were foreordained to wither on the vine. That argument is intuitive at first sight, but elusive on closer inspection. The basic idea is that because the common law creeps forward case by petty case it cannot build a body of law which is systematically organized around a highly general concept like “dignity”.
The article begins with an examination of the “concept of dignity,” distinguishing two competing conceptions—one conceives of dignity as a “status conception”; the other “involved the worth of the individual”. Examples of both conceptions come readily to mind. Stevens, the butler in Kazuo Ishiguro’s celebrated novel, The Remains of the Day, identifies “dignity” as the mark and aspiration of a great butler. Dignity is a kind of self-possession and what a self-possessed butler does is to sublimate their personal concerns into their professional role. Erasing all personal thought and feeling and replacing them with professional appropriate deference to the thoughts and feelings of the great man a great butler serves is a mark of greatness in a butler. Great butlers inhabit their roles fully, and are wholly consumed by them. Status is central here. The “dignity” of a butler consists in conduct and bearing appropriate to the position, and the position itself is constituted by its place in the social hierarchy. Great butlers serve great men and their greatness is parasitic on the greatness of those they serve. Consequently, the role and responsibility of a Butler is to pursue the ends and projects of the great man that he serves. Perfection in the role all but extinguishes the butler as his own, independent person. At the other end of the spectrum, we are accustomed to Declarations of Human Rights which proclaim universal, and equal human dignity. Claiming the mantle of “dignity” these documents celebrate the intrinsic and equal worth of every human being. And we are familiar, too, with a way of combining these apparently opposed conceptions. In the modern world, and under the influence of democratic ideas, there has been a kind of “leveling up” whose aspiration is to assign to every person the highest rank—the status of being an “end in themselves” as a member of the “kingdom of ends”—in one famous formulation.
Abraham and White are hesitant to settle on a single account, a Dworkinian “best interpretation” of “dignity”. Indeed, they suggest that the richness of dignity as an idea is an important reason why the “dignitary torts” lack the unity we might wish they had. The wrongs give voice to different, and often conflicting, dimensions of the concept and those dimensions don’t always hang together gracefully. No one, for instance, would think that defamation as traditionally articulated expressed a democratic ideal of equal high status. But someone might well think that what makes a battery offensive in our law is that the touching disrespects and demeans its victims, treating them as inferior in status and rank to the person doing the touching. Fisher v. Carrousel Motor Hotel is a case in point. In Fisher, a white maitre’d snatched a plate from a black patron’s hand in the course of ejecting the patron from the restaurant because of his race. The touching was itself offensive to a reasonable sense of personal dignity because it expressed contempt and asserted superior racial status.
Although they disown any single account of dignity, Abraham and White’s emphasis on the richness of the concept also leads them, sometimes, to tell a story in which the slow march of the dignitary torts in the first two thirds of the twentieth century is the story of a kind of moral progress. In this story, case by case, and wrong by wrong, courts and commentators are working out what it is that the law of civil wrongs forbids in the way of conduct which embarrasses, humiliates, exploits, intimidates, restrains and ridicules because those particular ways of demeaning, embarrassing, exploiting, humiliating, and so on, are incompatible with the intrinsic worth and equal high status of democratic citizens. Put differently, one of the stories which can be told about the slow, halting march of the dignitary torts is a story about the articulation of a law of civil wrongs suited to a nation “conceived in Liberty, and dedicated to the proposition that all men are created equal.”
So why did it all end, slowly at first but quite completely? The “puzzle” is that claims for legal recognition of dignity have grown more intense even as the dignitary torts have waned. Demands for the recognition of same-sex marriage, and for the recognition of equal rights for LGBT people more generally, are claims to have equal dignity recognized. Abraham and White offer two answers. One sounds more in logical inevitability; the other in historical accident and contingency. The “logically inevitable” answer is that the common law as an institution and method just is hostile to the systematic articulation of general legal conceptions. Even after the writs system is abolished, the forms of action rule us from the grave because they survive in the elements of causes of action. Courts must proceed by reworking those elements, tort by tort; the common law does not permit courts to start with a clean slate and extract (or, if you prefer, “deduce”) particular causes of action from general principles.
There is surely something to this description of the common law (and its implicit contrast with European Civil Code systems), but as an explanation for historical change within the common law it is suspect. For one thing, the explanation points to a property of the common law that it presents—correctly—as a constant. Consequently, the common law had the very same characteristics when the dignitary torts were on their slow march towards revision and expansion. Insofar as the case method of the common law does have implications for the path and the character of legal change, it seems to imply that the pace of common law change must be slow, and even piecemeal, but it doesn’t seem to require that change ever end. If anything, continuous change seems inevitable. The common law cannot help but be an object in motion, reworking itself constantly under the pressure of new cases. Moreover, the common law of torts has been the scene of astonishing reconstructions over the course of the past hundred and fifty years. In the latter half of the nineteenth century, negligence was transformed from the state of mind with which certain nominate torts could be performed, into a general principle of responsibility for accidental harm, around which the modern law of torts was organized. In the middle of the twentieth century, the law of torts gave birth to products liability, reconstructing a domain of social interaction which had been previously dominated by the law of contract and rules of “no duty”. The dignitary torts may well be more hostile terrain for the development of general principles but, if so, the difference must lie their particular subject matter(s); or in the complexity of the interests they implicate; or in the elusiveness of dignity as a concept. Common law method does not distinguish the domain of the dignitary torts from areas of tort law that have seen far greater generalization and reconstruction.
The second explanation that The Puzzle of the Dignitary Torts offers for the silencing of the dignitary torts is historical and particular. New York Times v. Sullivan changed everything. It opened the floodgates to the constitutionalization of these torts and that constitutionalization caused the dignitary torts to wither. American constitutional law gives wide latitude to speech which is vicious, and calculated to make its targets objects of public contempt. Freedom of speech has important roots in ideas of dignity and self-governance, but American free speech doctrine extends broad protection to speech which simply is an assault on the equal dignity of some people. Once the line between constitutional law and private wrongs was breached, constitutional law choked off evolving efforts to delineate the bounds of permissible attacks on the equality, worth, and high standing of one’s fellow citizens. This is a truly contingent development: pathologies of law and politics in the American South prompted a legal intervention which set the dignitary torts on an entirely different course, diminishing both their possibilities and their significance. And there is a larger lesson here, too, the diminution of the dignitary torts and the protections they provide to persons in civil society against humiliation, degradation, embarrassment and exploitation is yet another cost of the American legal system’s distinctively broad protection of speech. If free speech continues to emerge as the new Lochner, these costs will only rise. That is a sobering thought.
The Puzzle of the Dignitary Torts is, as its authors rightly say, the first article to reckon with this corner of the law in a comprehensive way in more than a generation. It does so with depth, sophistication, and moral seriousness. Dismayingly, The Puzzle of the Dignitary Torts is also a swan song to a dying field. Looking back on fifty plus years of retreat, it’s hard not to be moved by that sad song. But the tale that Abraham and White tell does not have a single moral. There is at least an echo of a jeremiad in their story and the warning they give is one that has been gathering force. Free speech is surely an important value, but the evidence is steadily building that American law protects speech to the point where it can be wielded as weapon and used to destroy other values of equal importance. The time may have come to correct our course.
Cite as: Gregory Keating, What Ever Happened to Dignity?
(October 12, 2018) (reviewing Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts
, 104 Cornell L. Rev.__ (forthcoming 2018), available at SSRN), https://torts.jotwell.com/what-ever-happened-to-dignity/
In this book, legal scholar and philosopher John Oberdiek offers an elegantly written, meticulously argued, and highly original account of when it is morally permissible to impose mortal risks on others. Tort scholars and theorists have long examined the permissibility of risky conduct, but, as Oberdiek observes, their efforts have usually focused more on interpreting legal doctrine than on the more fundamental question of the morality of risking. And insofar as scholars have evaluated this more fundamental question, they have often provided a simplistic and normatively questionable answer: cost-benefit analysis or utilitarian balancing is the only realistic and sensible way to distinguish legally permissible from legally impermissible risky conduct. This answer is also reflected in the most common characterization of the famous (or infamous) Learned Hand test of negligence: an actor is negligent if but only if (i) she failed to take a precaution and (ii) the burdens or costs of taking that precaution outweighed the precaution’s benefits (in reducing the risks of harm. At the same time, Oberdiek notes, moral philosophers have paid relatively little attention to the moral evaluation of risky conduct. in part because they usually assume the existence of idealized conditions under which the outcomes of a person’s actions are certain. Turning the trolley (or shoving a fat person into its path) will cause the death of one; not turning it will permit the death of five. Framing an innocent person will prevent a mob from killing more people. And so on.
In contrast with these unpersuasive or overly stylized approaches, Oberdiek’s book is a very welcome and invigorating breath of fresh air. Oberdiek offers a rigorous, nuanced, and novel account of the morality of risking, an account that seriously engages with the difficult challenge of explicating the concepts of risk, a right against risk, and the permissible level of risk under contractarian principles. Although some aspects of the analysis might be questioned, this philosophically sophisticated work should provoke renewed attention to a terribly important and unduly neglected topic.
Oberdiek begins with a lucid explanation of the two major accounts of probability—subjective and objective. The risk literature employs these terms in a specialized sense: subjective probability refers to the individual actor’s belief about a risk, while objective probability typically refers to the relative frequency of an event (such as D dying in a car accident next year). Oberdiek concludes that purely subjective accounts are “suitably practical but insufficiently normative,” because they cannot explain why we might fault an actor for engaging in what the actor believes to be low-risk conduct even though the actor failed to respond to evidence that the risk was high. By contrast, purely objective accounts are “suitably normative but insufficiently practical” (P. 4), largely because of the reference class problem.
The problem is this: One can specify the class that includes the relevant event in innumerable ways. If D is characterized as an American male, we get one probability of his dying in a car crash. If D is instead characterized as an Indiana-born actor, or a regular cigarette smoker, the probability of death could be significantly lower or higher. Many tort teachers and scholars will not be familiar with “the reference class problem” under that description, but they will be well acquainted with the problem itself, a problem that has long bedeviled reasonable foresight criteria in duty and proximate cause analysis. “On a clear day, you can foresee forever.” It might seem unforeseeable (i.e. extremely improbable) that a person on a subway platform will be injured as a result of a subway employee pushing a passenger onto a subway car a significant distance away, but it is surely foreseeable that pushing a person carrying dynamite onto a subway car will injure any person within the normal detonation range of such an explosive. How one characterizes the relevant risk makes an enormous difference both to the “objective probability” of an event and to the foreseeability of a risk. Thus, the objective risk approach suffers from the fatal defect of practical indeterminacy.
The solution? In a phrase, “epistemic contractualism.” (P. 40.) “[W]e have an epistemically-inflected moral duty to characterize the risks that we impose in a manner that is interpersonally justifiable. Morality itself…places normative pressure on our factual beliefs.” (P. 42.) Oberdiek endorses an “evidence-relative perspective” that characterizes risks in a way that is neither too demanding of agents imposing risk nor (as the subjective belief perspective would be) insufficiently demanding of agents and insufficiently protective of “patients” (or victims). To give content to this idea, Oberdiek brings to the stage that hoary legal construct, the reasonable person. One has a moral duty to exercise reasonable care in investigating causally relevant facts before acting; but because moral norms are action-guiding, this duty must be sensitive to our limited epistemic capacities. In the course of this discussion, Oberdiek powerfully and persuasively criticizes the view of philosopher Judith Jarvis Thompson that the actual facts (determined ex post) must be the decisive criterion of one’s moral duty.
I share Oberdiek’s view that a reasonable person perspective is a persuasive middle-ground between a fact-based and a belief-based account of permissible risk-imposition. Nevertheless, his account raises several questions. First, in articulating the content of the perspective, Oberdiek asserts that “risks must be given their gravest characterization” (P. 7), in order to be justifiable to potential victims. Yet it is not clear what this amounts to. Oberdiek’s illustrations here could be more illuminating. For example, he says that proper respect for the interests of coal miners in West Virginia requires consideration of the risks that such coal miners face in the mines, not the (lower) risks faced by anyone living in coal country. (P. 62.) Fair enough. But should we consider the (higher) risks faced by inattentive coal miners? Coal miners with preexisting health conditions? Coal miners who choose not to use safety equipment? His injunction to employ the “gravest” characterization of the relevant risk does not resolve these questions.
Second, that injunction also begs the more fundamental question whether one can reliably and legitimately draw a distinction between “patients” (or victims) who suffer risks and agents who impose them. In many of our activities, such as driving a car or even walking down the street, we occupy both roles. To be sure, some people are pedestrians but never drivers. In such a case, perhaps there is more force to Oberdiek’s claim that we must employ the “gravest” characterization of the risk, in order to make up for the fact that the nondriving pedestrian is the more vulnerable party. (P. 64.) In the end, however, these issues point to the importance of distributive justice constraints on risk, constraints that Oberdiek largely neglects in this book. If risks are reciprocal and benefits are widely shared, arguably it is unduly restrictive to condemn risk imposition as frequently as the patient-sensitive “grave” characterization would require.
Third, in emphasizing that norms about permissible risk are action-guiding, Oberdiek seems to presuppose a fault-based account. Yet he does not provide an argument for privileging fault-based responsibility over strict responsibility. In tort law, of course, many strict liability doctrines exist—e.g., abnormally dangerous activities, animals, vicarious liability, and manufacturing defects in products. In morality, too, some scholars have argued that responsibility is sometimes strict. Put differently, a strict liability norm can provide that an actor has a duty to compensate even if the norm does not entail that the actor’s primary conduct should have been different.
In Chapters 3 and 4, Oberdiek explores the moral significance of risking and what a right against risking would entail. The most common answer is straightforward: imposing risk is wrong because one could thereby cause physical harm (such as property damage or personal injury) or other material harms (such as fear of injury, a type of emotional harm; or disrupting the lives of those who choose to avoid the risk). And no one denies that people have a right not to suffer a material harm. Oberdiek abjures the obvious answer, however. He argues that even in cases of pure risk—cases in which none of these material harms comes to pass—a person has a right not to be subjected to an impermissible risk. Oberdiek also worries that the obvious answer conflates the distinct questions whether the agent is culpable and whether the act is impermissible or wrongful.
And why is pure risk imposition potentially wrongful? Not because the conduct might cause material harm, but because it can diminish the autonomy of those subject to the risk. For example, a drunk driver diminishes the autonomy of those he endangers, even if they are unaware that they are put at risk, because that dangerous conduct forecloses certain options that would otherwise be available to those who were endangered, thus narrowing their set of worthwhile opportunities. Imposing risk is like laying a trap: “the trap takes away the option, or more accurately renders unacceptable the exercise of the option, of stepping where the trap has been set.” (P. 86.)
This is a highly original and bracingly provocative claim. And in some circumstances, it is intuitively very attractive. Consider the following example from philosopher John Locke. A person wakes up in a room, has a conversation with another, and makes no effort to leave because he enjoys the conversation. As it turns out, he was locked in the room. Locke characterizes the actor’s decision to remain in the room as voluntary but also concludes that the actor was “not at liberty not to stay.” There is indeed an important sense in which an actor unaware of his lack of choice and content with his current circumstances may nevertheless lack a genuine choice.
However, the autonomy explanation of why pure risking can be wrongful also raises significant questions. First, Oberdiek’s analogy to the laying of traps seems problematic. Much of the force of the analogy flows from the high level of culpability of the “trapper.” One who lays a trap has the intention or purpose to limit the freedom of another, precluding their physical mobility by ensnaring them within the trap. But risky conduct can be impermissible even if it is not intended to limit the autonomy of others. A speeding driver might simply intend to arrive at her destination more quickly or to enjoy the feeling of wind flowing through her hair, but it hardly follows that the risk she imposes is therefore permissible. Oberdiek’s real concern is the effect of risky conduct on others’ options, not the intention of the actor. ((Consider two examples, in both of which P is unaware of the risk.
- X lays a trap in a particular location by which he intends to confine P, and there is a 10% chance that P will fall into the trap.
- Y builds a ditch that completely encircles P and that will cause the same degree and duration of confinement if P falls into it, and there is an 80% chance that P will fall into the ditch. Unlike X, Y is entirely unaware of P’s presence. (If Y had reasonably used his epistemic faculties, he would have investigated first and would have discovered P’s presence.)
On Oberdiek’s account of autonomy as a range of options, X has restricted P’s autonomy to a much lesser extent than Y, yet X is the one who has intentionally “laid a trap,” while Y has (merely) negligently built a ditch. Laying a trap is thus a somewhat misleading illustration of his theory.))
The trap example displays another potential problem with Oberdiek’s autonomy approach: the example illustrates a restriction of locational autonomy, yet Oberdiek is also properly concerned with restrictions of many other types of autonomy. The trap, once triggered, prevents a person from moving or relocating elsewhere, but Oberdiek is concerned with the permissibility of a broad array of risks, including those posed by drunk drivers and negligent manufacturers of products. How exactly do these risks constraint autonomy? By making it unsafe for the actor to pursue certain options, Oberdiek explains. If speeding driver A is weaving in and out of traffic, a nearby driver B’s freedom of safe movement has been significantly restricted, even if B is unaware of A, since a small turn of the wheel by B could have resulted in catastrophe.
Examples such as these raise the deeper question whether Oberdiek has successfully identified the problem in pure risk cases. Is the diminished scope of B’s choices really what is at stake in the speeding driver case, or instead the diminished ability of B to lead his or her life free of risks of material harm such as death or injury? Consider a different case. D negligently conducts surgery on patient P, and P is now at much greater risk of a sudden fatal heart attack. Oberdiek is correct about one way that D has constrained P’s freedom (even if P does not know about the risk): P cannot now engage in high-exertion exercise, smoking, or prodigious eating as safely as before. But is this really why P would be upset to discover, on his deathbed, that D had greatly increased his risk of suffering a heart attack?
Or imagine a more extreme case: a surgeon accidentally leaves a sponge in a patient; the sponge could cause deadly internal bleeding at any time, but no individual choices the patient makes in later life will increase the risk of that fatal result. In one sense, this conduct surely must count as a dramatic restriction of P’s “autonomy,” just in light of the risk that the patient will die and lose the ability to make any future choices. But the conduct does not seem to restrict autonomy at all in the sense that Oberdiek emphasizes, of making the consequences of a person’s choices less safe.
In the final portions of the book, Oberdiek offers an intriguing account of rights as the conclusion rather than the premises of normative arguments; rejects the distinction between infringing and violating rights; and explains how he would identify which risks are permissible and which are impermissible. The discussion of the last topic is tantalizing but incomplete. Relying on a contractualist framework, Oberdiek argues that a risk is permissible if no person, considering the intrapersonal benefits and disadvantages of a risky activity, could reasonably reject the principle that justifies that activity. This approach is illuminating, but I do wish that Oberdiek had been more specific in identifying the threshold of permissibility—for example, he could have more explicitly compared his approach to different conceptions of negligence in tort law.
Oberdiek recognizes that his approach might appear to be too restrictive of risky human activity. In reply, he suggests that in assessing the justifiability of specific instances of risky conduct, we must consider the implications of this assessment for “any activity with the same risk profile.” (P. 13.) On this wider view, “even those who do not participate in or reap the benefits of certain risky practices nevertheless do participate in and reap the benefits from imposing risk as such.” (Id.) Thus, even if Amish farmers reject modern transportation, they probably do not reject, and could not reasonably reject, the more general principle that activities with similar benefits and risks are acceptable or desirable. This reply is promising, but it does provoke a worry. In generalizing in this manner, is Oberdiek surreptitiously reintroducing an interpersonal aggregation criterion that he elsewhere critiques?
Let me conclude by emphasizing that this book is a creative, thought-provoking, carefully argued, and immensely clarifying analysis of the morality of risking. Tort theorists, moral philosophers interested in risk, and tort scholars engaged by reasonableness and negligence doctrines will learn a great deal from Oberdiek’s arguments, whether or not they find all of the arguments fully persuasive.
Kenneth S. Abraham and Robert L. Rabin, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era
, 105 Va. L. Rev.
__ (forthcoming 2019), available at SLS
Now that self-driving vehicles roam the roads and have already caused injury and death, many talented torts scholars are reviewing the role of tort law as a regulator of this new technology and as an insurer of its victims. In their recent article, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, the formidable duo of Ken Abraham and Robert Rabin join the inquiry. Abraham and Rabin write, “The new era of automated vehicles will eventually require a new legal regime that properly fits the radical new world of auto accidents.”
Having laid down this challenge—to fit a new legal regime to a new technological era—Abraham and Rabin assess both the anticipated challenges of self-driving vehicles and the appropriate tort law responses to them. The authors expect automobiles to evolve through a number of stages, beginning with vehicles that are driver controlled, progressing to vehicles that are machine-assisted, then transitioning to vehicles that are machine-controlled but driver-assisted, and culminating in vehicles that are fully machine-controlled. Abraham and Rabin welcome this evolution. They believe that “[a]ccident rates will decline precipitously, by some estimates as much as 80-90 percent.” (P. 2.) Yet they also believe that the transition to automated technology will be “long and uneven.” Abraham and Rabin foresee periods in which varied vehicles will coexist on the roadway—much as the horse and buggy ultimately, but not immediately, gave way to the automobile.
To regulate this mixed environment, Abraham and Rabin propose plans for the short term and the long term. For the near future, when conventional vehicles predominate, Abraham and Rabin would retain the current “driver-focused” tort liability regime alongside regulation of automated technologies. As the authors explain, driver-focused negligence liability accords with the profile of current accidents, which involve frequent driver errors. Also, individualized insurance underwriting comports with a driving context in which drivers are more or less careful. Regulating automated technologies under current systems is a more difficult matter. Abraham and Rabin are pessimistic about the adequacy of regulation by the National Highway Transportation Safety Agency. Their plea is for the agency to set up ex ante performance standards to guide innovation and ex post oversight of design miscalculations. They also examine the potential for, and pitfalls of, products liability claims in cases of automation defects.
For the long run, once highly automated vehicles comprise 25% of the fleet, they would adopt a system of “’Manufacturer Enterprise Responsibility’ (MER).” (P. 17.) This system entails “auto manufacturer responsibility for all injuries arising out of the operation of HAVs (highly automated vehicles).” (P. 5.) The system would be “a manufacturer-financed, strict responsibility bodily-injury compensation system, administered by a fund created through assessments and levied on HAV manufacturers.” (P. 21.) For this system, physical harm to victims would trigger liability, without need for proof of vehicle defect.
The argument for an enterprise responsibility system stems from the authors’ belief that this system will more effectively promote safety and provide consistent and predictable compensation for injuries. With less driving by individuals, there is less reason to impose liability on individuals or underwrite insurance on an individualized basis. (P. 8.) The MER system would place liability for harm with the manufacturer, the entity that seems most capable of preventing harm. Much of the article is then focused on adopting and activating an enterprise liability system.
The strength of the Abraham and Rabin piece is its practicality. They outline the virtues of an enterprise liability system—it would be more predictable for manufacturers and more even-handed for injured parties. They draw parallels to other systems such as workers compensation and long-term disability. And they examine how the manufacturer-focused system might work in practice—through contracts with parts suppliers and caps on damages, for example. Abraham and Rabin also forthrightly address potential weaknesses of their plan. For example, enterprise liability could increase the cost of highly automated vehicles and make them more expensive to produce, even though their better safety profile would suggest encouraging rather than discouraging manufacturers to produce them. Here, Abraham and Rabin suggest government subsidies to offset the manufacturers’ increased liability costs.
The plan is thoughtful and one that policymakers would do well to engage. Enterprise liability is worthy of consideration in this area, as it has been in others. But what is perhaps most striking about the plan is how much the recommended new legal regime resembles suggestions for the old one. Indeed, the advent of highly automated vehicles seems to have little influence on the proposed legal system at all. In Professor Rabin’s 1996 article, Some Thoughts on the Ideology of Enterprise Liability, he begins with George Priest’s “core definition of enterprise liability in the context of product-related injuries.” In particular, “the twin notion that an enterprise should bear the risks of accidents it produces because (1) an enterprise has superior risk-spreading capacity compared to victims who would otherwise bear the costs of accidents, and (2) an enterprise is generally better placed to respond to the safety incentives created by liability rules than is the party suffering harm.” Abraham and Rabin’s proposal applies existing ideas of enterprise liability to a new context. This idea is sound and adaptive, but far from disruptive.
A disruptive system may not be needed. Existing theories of enterprise liability may be well suited to HAVs, like other products. The law of the HAV, like the law of the horse, may not need to be written. A difficulty with manufacturer enterprise liability seems to be a difficulty with enterprise liability in general. HAVs seem like many products—one of multiple causes of accidents. Current auto accidents are caused by a combination of driver failure, vehicle design, and driving context, particularly road design. After the shift to HAVs, even if driver error can be completely eliminated from the accident equation, driving context will likely remain as important, if not more important a factor in traffic accidents.
Even after automation, ordinary contextual elements like rain and snow can play a role in crashes. After automation, newer contextual elements may play a role as well. Through vehicle-to-vehicle communication, the function of nearby vehicles and roadway networks may become a particularly important determinant of accidents. Network design, and even events like theft of valuable metals from smart roadways can interfere with car safety. If highly automated vehicles are one factor among others in roadway crashes, in this context, as in others, scholars will need to make the case for the efficacy and fairness of enterprise liability more broadly. In the HAV context, as in other enterprise liability contexts, scholars will have to wrestle with the difficult question of when an accident should be attributed to an automated vehicle rather than weather, road design, or other factors.
Another possibility, is that this transformative technology really will warrant a completely new legal regime. As we enter an era of HAV’s and more sophisticated technology, perhaps those technologies themselves might be designed to better regulate accidents or compensate injured parties. HAVs could be required to record and transmit automated records of accident or near-accident data and update federal regulatory performance standards directly or pay fines per design miscalculation (running a red light, for example), rather than per injury. Imagine disputes settled through crowdsourcing.
It may be that the more things change the more they stay the same, and that new technologies can be regulated with existing ideas. But it may also be that we will not fully envision the new legal regime that best fits radical new technologies until those technologies are not just roaming the streets, but embedded in the streets themselves.