Revision — From the April 2016 issue

Suing for Justice

Your lawsuits are good for America

Download Pdf
Read Online
( 2 of 7 )

Ninety-three years ago, Roscoe Pound, then dean of the Harvard Law School, remarked that “law must be stable and yet it cannot stand still.” Gradually, judges and state legislatures began to adopt the rule of comparative negligence to replace the harsh rule of contributory negligence. Under the latter, if an injured plaintiff had been careless in any way, no matter how slight, and her carelessness contributed to an accident, she would recover nothing against the defendant, no matter how blameworthy the defendant’s conduct was. Comparative negligence allows a jury to make a rough calculation of each party’s negligence (say, 75 percent on one side and 25 percent on the other), so instead of recovering nothing, a victorious plaintiff would recover a portion of the claimed damages, reduced by the percentage of her fault. A celebrated 1932 opinion by the highly respected Judge Learned Hand declared that the owner of a tugboat could not avoid his negligence in not having an emergency radio aboard by claiming that no one else in the industry had one either.

In our tort class at Harvard, the case that most caught my attention was MacPherson v. Buick, which was decided in 1916 by Judge Benjamin Cardozo. The case involved a wheel that had collapsed beneath a Buick, causing the driver to be thrown from the car and injured. Judge Cardozo ruled, in a pioneering decision, that even though the injured person bought the car from an auto dealer, and had no direct contractual relationship with the car’s manufacturer, the company that built the car nevertheless could be held liable by the car’s owner for violating its standard of care in properly constructing the vehicle. Years later, court cases began to hold automobile and other companies liable for “dangerous defects” that led to casualties, irrespective of the manufacturer’s intent. This was called the doctrine of strict liability.

After World War II, the courts, prodded by prominent plaintiffs’ attorneys such as Melvin Belli in California, began to allow the admission at trial of what was called demonstrative evidence. Jurors were permitted to view, for example, exhibits of human skeletons that showed orthopedic damage to spines, knees, and hips. Photographs of accident scenes, along with mock-ups of vehicle models, factory machines, and manufacturing defects, helped jurors and judges to visualize the events that actually took place. In the 1960s, civil procedures were amended to make the filing of class actions easier: instead of individual cases having to be filed separately, collective action could now be taken on behalf of thousands of people.

The call for broader safety regulations became louder in cases involving drugs, food, and vehicles. With the rise of the environmental movement came remedies for such silent forms of violence as pollution. Following litigation and its disclosures, companies fearing lawsuits and higher insurance premiums were forced to change their injurious practices or to clean up polluted areas. Such advances reflected evolving community notions of what is fair and sensible when it comes to holding perpetrators responsible for their misdeeds. Thanks to a variety of tort cases, asbestos, lead, and vinyl chloride, among other deadly toxins, are now almost entirely prohibited. Now the residents of Flint, Michigan, are using the civil-justice system to address the contamination of their drinking water. Allison Torres Burtka, writing for the American Museum of Tort Law, reports:

Melissa Mays and several other Flint residents who have elevated levels of lead in their bodies are leading a class action lawsuit. Some of them have suffered neurological symptoms, skin lesions and hair loss, gastrointestinal problems, aggravation of existing developmental disorders, and emotional and psychological distress from dealing with the fact that they have been drinking, cooking with, and bathing in toxic water. . . . The class may encompass tens of thousands of people. As of late January, the lawyers handling the class action were working with roughly 1,200 class members.

“These lawsuits are important because, when the media’s gone and the story comes off the front page, these people will have to live day to day with what’s happened to them, and we want to make sure funds are available to get them what they need,” said Michael Pitt, who represents the plaintiffs.

While researching my book Unsafe at Any Speed, I pored over state and federal government files, as well as the archives of engineering schools. Save for a few documents in the U.S. Patent and Trademark Office, I was unable to find much acknowledgment of what, as it turned out, many industry people knew full well: namely, that there was a huge gap between the stylistic psychosexual pornography dreamed up by automobile marketing executives and feasible, lifesaving devices and technology. I did, however, find useful documents in the files of plaintiffs’ attorneys who had sued or were then suing the car manufacturers, their suppliers, and their dealers. Thanks to cases against General Motors as well as major tire companies, I found evidence of avoidable hazards, their origins, and cover-ups.

In 1965, Gaylord Nelson, a Democratic senator from Wisconsin, promoted a tire-safety bill by introducing on the Senate floor material that had been produced in a lawsuit against inadequate inspections and testing by a large tire manufacturer. We used other evidence revealed in litigation to expand the range of congressional hearings, which eventually led to both the passage of the Tire Safety Act of 1966 and the creation of the National Highway Traffic Safety Administration (NHTSA), which has the authority to issue mandatory safety standards, to order recalls of defective vehicles, and to conduct research and development. Although we had useful evidence from other reputable sources, including Air Force–sponsored crash research and tire-company whistleblowers, it was information revealed in courts of law or obtained through direct, sworn testimony that impressed hesitant legislators. To this day, the NHTSA, the Food and Drug Administration, and even the Occupational Safety and Health Administration (OSHA), federal agencies that are often inattentive, can be jolted into some action by the evidentiary fallout from plaintiffs claiming tortious harm in state or federal courts.

Another way the tort laws benefit society is that they can help press prosecutors to enforce criminal laws when power structures — politicians or police — otherwise would not. The criminal prosecutions of pedophile priests and other cloistered defendants have often been made possible by the disclosures that emanated from tort lawsuits brought by victims. In addition, when prosecutors decline to prosecute illegal police violence or corporate criminals — as in the case of Tamir Rice, the twelve-year-old who was shot by police in Cleveland — the victims or next of kin have often resorted to the civil-justice system for compensation and sanctions. Street protesters, minority groups, consumers, and workers in the pharmaceutical, auto, and oil industries, for example, have also resorted to civil remedies in the courts.

You are currently viewing this article as a guest. If you are a subscriber, please sign in. If you aren't, please subscribe below and get access to the entire Harper's archive for only $45.99/year.

= Subscribers only.
Sign in here.
Subscribe here.

Download Pdf
Share
is a consumer advocate and the founder of the American Museum of Tort Law, in Winsted, Connecticut.

More from Ralph Nader:

Readings From the May 2014 issue

Green Old Party

Get access to 168 years of
Harper’s for only $45.99

United States Canada

THE CURRENT ISSUE

August 2018

Combustion Engines

= Subscribers only.
Sign in here.
Subscribe here.

There Will Always Be Fires

= Subscribers only.
Sign in here.
Subscribe here.

The End of Eden

= Subscribers only.
Sign in here.
Subscribe here.

How to Start a Nuclear War

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content
Close

Sign up to receive The Weekly Review, Harper’s Magazine’s singular take on the past seven days of madness. It’s free!*

*Click “Unsubscribe” in the Weekly Review to stop receiving emails from Harper’s Magazine.