The culture of tort, and how it makes us contort


My dictionary says tort is “a wrongful act that results in injury to another’s person, property, or reputation, and for which the injured party is entitled to compensation.”

If you believe yourself to be the victim of tort, our country and culture includes the individual and corporate right to sue and ask compensation for damages. We treasure this right. Suing the crap out of each other is at the core of what it means to be American.

But tort is not always easy to interpret. Was there a wrongful act? And who is responsible for the injury? Is there an actual injury? If so, is it wrongful?

Our interpretations of wrongful acts, injuries and responsibility tend toward the capricious and contradicted. Cultural whimsy drives retrospective claims. Some groups are confronted with “wrongful acts,” while other groups are given a presumptive pass on similar or identical acts.

Former National Football League players, for example, are suing the NFL, which they believe to be guilty of tort. The wrongful act here, I assume, is that NFL owners knew or should have known that football is a violent sport, fraught with the possibility of your head banging into other heads, thigh and shoulder pads, not to mention the ground at high speeds. And, because some (not all) players’ brains have reacted badly in later age to being violently and repeatedly bounced against the inside of their skulls, therein lies a wrongful injury arguing backward to a wrongful act.

Yet, Muhammad Ali, a man whose boxing career so damaged his brain that his gait is a shuffle and his speech is slurred whispers, isn’t suing anyone. He made his living in a sport whose implicit rules are defined as, “The winner is the contestant who so violently shakes the opponent’s brain against the skull that the opponent falls down and can’t get back up.” I guess it remains to be seen whether Ultimate Fighting Championship fighters, making their living in a sport overtly defined by inflicting injury, will someday claim “wrongful injuries.”

My only point here is that I notice inconsistencies and contradictions in our deployment of lawsuits.

But, back to our love affair with tort litigation. We’d better like it. Because it’s a very, very expensive habit. The culture of tort litigation is a ravenous blob that requires constant feeding and attention. And we pay handsomely for the food and attention it requires.

The culture of tort litigation changes us. It sets precedents we could never anticipate. It’s weird to live in a world where it’s often cheaper to pay off complaints than to stand and question the veracity of those complaints. But its most troublesome feature, for me, is the way it seems to erode the question of personal responsibility.

I often rehearse the scenarios in which I would or would not sue:

If in the late fall I decide to take a drive into a federal forest, and if I then have car trouble, and a blizzard comes, and I am forced to spend three days in freezing conditions until a skier happens upon me, would I then sue the federal government for the “wrongful damages” of my toes surgically lost to frostbite? No, I wouldn’t. I would assume responsibility for the risk I took.

If I decided to drive away from the McDonald’s window cradling a cup of coffee between my thighs and nestled in front of my family jewels and the coffee jostled or spilled on said thighs and jewels and burned me … no, I wouldn’t sue. I’d feel so utterly stupid I might not even tell the truth about why I’m moving a little gingerly. Coffee is served hot, right? I assume the risk for how I tote hot beverages.

If you get drunk and decide to drive and hit my car and injure me, then you are responsible. If you refuse to be responsible, I’ll sue you. But if you give me millions of dollars for playing football and later in life I noticed long-term consequences of my former vocation … well, would I, with a straight face, really say, “You should have told me that football is a violent sport, fraught with the possibility of my head banging into other heads, thigh and shoulder pads, not to mention the ground at high speeds.”

Reminds me of a Monty Python sketch wherein a recently enlisted army private asks to quit because he is shocked and surprised to learn that, should England go to war, people with guns will be trying to kill him.

Steven Kalas is a behavioral health consultant and counselor at Las Vegas Psychiatry and the author of “Human Matters: Wise and Witty Counsel on Relationships, Parenting, Grief and Doing the Right Thing” (Stephens Press). Contact him at skalas@reviewjournal.com.

 

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