The death of common sense.

[BridgeTroll]

I would love to hear comments from our cadre of lawyers...

http://townhall.com/columnists/GeorgeWill/2009/01/11/running_at_recess

Running at Recess

George Will
Sunday, January 11, 2009

WASHINGTON -- Called to a Florida school that could not cope, police led the disorderly student away in handcuffs, all 40 pounds of her 5-year-old self. In a Solomonic compromise, schools in Broward County, Fla., banned running at recess. Long Beach, N.J., removed signs warning swimmers about riptides, although the oblivious tides continued. The warning label on a five-inch fishing lure with a three-pronged hook says, "Harmful if swallowed"; the label on a letter opener says, "Safety goggle recommended."

No official at the Florida school would put a restraining arm around the misbehaving child lest he or she be sued, as a young member of Teach for America was, for $20 million (the school settled for $90,000), because the teacher put a hand on the back of a turbulent seventh-grader to direct him to leave the classroom. Another teacher's career was ruined by accusations arising from her having positioned a child's fingers on a flute. A 2004 survey reported that 78 percent of middle and high school teachers have been subjected to legal threats from students bristling with rights. Students, sensing the anxiety that seizes schools when law intrudes into incidental relations, challenge teachers' authority.

Someone hurt while running at recess might sue the school district for inadequate supervision of the runner, as Broward Country knows: It settled 189 playground lawsuits in five years. In Indiana, a boy did what boys do: He went down a slide head first -- and broke his femur. The school district was sued for inadequate supervision. Because of fears of such liabilities, all over America playgrounds have been stripped of the equipment that made them fun. So now in front of televisions and computer terminals sit millions of obese children, casualties of what attorney and author Philip Howard calls "a bubble wrap approach to child rearing" produced by the "cult of safety." Long Beach removed the warning signs because it is safer to say nothing: Reckless swimmers injured by the tides might sue, claiming that the signs were not sufficiently large or shrill or numerous, or something. Only a public outcry got the signs restored.

Defensive, and ludicrous, warning labels multiply because aggressiveness proliferates. Lawsuits express the theory that anyone should be able to sue to assert that someone is culpable for even an idiotic action by the plaintiff, such as swallowing a fishing lure.

A predictable byproduct of this theory is brazen cynicism, encouraged by what Howard calls trial lawyers "congregating at the intersection of human tragedy and human greed." So:

A volunteer for a Catholic charity in Milwaukee ran a red light and seriously injured another person. Because the volunteer did not have deep pockets, the injured person sued the archdiocese -- successfully, for $17 million.

The thread connecting such lunacies is a fear permeating American life. It is, alas, a sensible fear arising from America's increasingly perverse legal culture that is the subject of what surely will be 2009's most needed book on public affairs -- Howard's "Life Without Lawyers: Liberating Americans from Too Much Law."

A nation in which the proportion of lawyers in the work force almost doubled between 1970 and 2000 has become ludicrously dense with laws. Now legal self-consciousness is stifling the exercise of judgment. Today's entitlement culture inculcates the idea that everyone is entitled to a life without danger, disappointment or aggravation. Any disagreement or annoyance can be aggressively "framed in the language of legal deprivation."

Law is essential to, but can stifle, freedom. Today, Howard writes, "Americans increasingly go through the day looking over their shoulders instead of where they want to go." The land of the free and the home of the brave has become "a legal minefield" through which we timidly tiptoe lest we trigger a legal claim. What should be routine daily choices and interactions are fraught with legal risk.

Time was, rights were defensive. They were to prevent government from doing things to you. Today, rights increasingly are offensive weapons wielded to inflict demands on other people, using state power for private aggrandizement. The multiplication of rights, each lacking limiting principles, multiplies nonnegotiable conflicts conducted with the inherent extremism of rights rhetoric, on the assumption, Howard says, "that society will somehow achieve equilibrium if it placates whomever is complaining."

But in such a society, dazed by what Howard calls "rule stupor" and victimized by litigious "victims," the incentives are for intensified complaining. Read Howard's book, and weep for the death of common sense.

[stjr]

It's not just the legal system, its everywhere.  (Note my slogan at the bottom of my posts!)  That's why we have the courthouse, Skyway, parking garage, the current financial mess, the war without an end plan in Iraq, and countless other examples EVRYDAY of lousy decisions throughout our society.

Risk avoidance manifests itself in other ways as well.

So many people today want to "fit in", are impatient, do not want to make waves, want to feel good now with a minimum of sacrifice, effort, or discomfort, not interested in team building (too much effort and time and might require compromise), want to be politically correct, etc. and are deathly afraid to speak their minds or contribute to best solutions less they be chastised, questioned, overridden or rejected, be exposed to conflict, asked to make a commitment, sacrifice their popularity, etc.

Because of our timidness to take actions with risks, we lack the experience achieved in the "school of hard knocks" from which we develop our COMMON SENSE.  As a sidebar, our behaviors result in a deafening silence that yields actions taken without proper consideration of the appropriate inputs, checks and balances, or possible consequences necessary to insure best practices and outcomes.  This gives us more knee-jerk and "emotionally" based processes, often devoid of risk - not well reasoned and seasoned intellectual ones taken in association with thoughtful plans that manage associated risks.

No doubt, we face a questionable future because of current societal mode.

[Joe]

The short answer:

American tort law (the law that lets one person sue another person for injury) is absurdly stacked in favor of the plaintiff (the person who sues). It's one of the most plaintiff friendly systems in the world. As a result, anyone who owns a business or sells a product is justifiably scared to death of being sued.

I can give more details if anyone wants. But that's the reason you see absurd warning labels and bizarre rules. It's not some weird cultural insanity. It is specifically because defendants are at a huge disadvantage in the U.S. and people who run businesses HAVE to be that paranoid, otherwise they WILL get sued.

[BridgeTroll]

But it was not always this way.  Has tort law changed that dramatically??    Seems to me something is wrong with the generations since the WWII gang.  Personally I think we are incredibly, incurably, undeniably, spoiled freeking rotten...

[jbm32206]

I couldn't agree more, and find it shameful as to how society has become. It's true, common sense and taking ownership of your own responsibilities has been kicked to the curb.

It ticks me off when school systems (and I know ours does) settles for big dollar amounts, over what it shouldn't be held liable for. Just as our court systems are overloaded with these ridiculous cases.

[JaxNative68]

The best phrase in that article is "entitlement culture", it is the goad of what today has become, which is the majority of society feels they are entitled to be handed everything in life without working for it, or at least putting in a good effort.  Who can I sue to make me a millionaire rather than earning it myself?  What, you mean it could take me twenty-five years to earn the lifestyle I want . . . who can I sue to get that much money now?  It seems to be the American way now.  The old fashion American way that used to be "earn it" has turned to "sue for it".  With the global economy in the state of affairs it is in, I don't see the earn way coming back into existence for some time.  The morals of the average human being has dipped to a depressing low.

[JaxNative68]

When is the last time you heard law described as beautiful or as inspiring?  I cringe at the thought of it as art.

[BridgeTroll]

We are all aware of the mcDs case... This is not really the point of Wills "narrow little article".  He is decrying the the culture of blaming someone else for your problems...

[BridgeTroll]

A poor analogy... but most outside of your circle would disagree with you assesment of Wills conclusions...

[Joe]

But it was not always this way.  Has tort law changed that dramatically??

Yes, tort law has changed subtly, but with great impact.

In the past, if the plaintiff contributed to the cause of his injury, he was precluded from winning. Makes sense, right? Today, the plaintiff must contribute to 50%-51% (depending on the state) to the cause of his injury before being barred from winning. In other words, even if the plaintiff was a negligent idiot, as long as a jury determines he was only 30% or 40% negligent, he can still sue the pants of someone else.

Another big issue is the concept of "duty." It gets very technical, but essentially courts have been slowly expanding the amount of duty against negligence that we owe to other people. This means more lawsuits.

The biggest issue is probably court costs. Unlike most of the rest of the world, in America the loser does NOT typically pay the winner's court costs. This means that some jackass and his jackass ambulance chasing lawyer can harass people with lawsuits all day. As long as they never cross the line into being legally frivilous they can sue on cases they know they'd probably lose and not have to worry about paying their victim... er opponent's legal fees. Why does this matter? Because most cases don't go to trial. They settle. Therefore scumbags go around and "fish" for settlements hoping that some poor business owner would rather settle than risk a trial. And if someone actually stands up to them and lets it go to court, they never have to worry about paying the other sides legal fees. It costs little more than the scumbag lawyer's time.

[BridgeTroll]

Of course, its hard to argue with an idea like "Motherhood is precious" or "Liberty is Good"  Or other such truisms.

Not sure what you mean Stephen?  I know you enjoy a hot cup of coffee and understand the brewing and serving process...

The smell (and therefore the taste) of coffee depends heavily on the oils containing aromatic compounds that are dissolved out of the beans during the brewing process. Brewing temperature should be close to 200 °F [93 °C] to dissolve them effectively, but without causing the premature breakdown of these delicate molecules. Coffee smells and tastes best when these aromatic compounds evaporate from the surface of the coffee as it is being drunk. Compounds vital to flavor have boiling points in the range of 150â€"160 °F [66â€"71 °C], and the beverage therefore tastes best when it is this hot and the aromatics vaporize as it is being drunk. For coffee to be 150 °F when imbibed, it must be hotter in the pot. Pouring a liquid increases its surface area and cools it; more heat is lost by contact with the cooler container; if the consumer adds cream and sugar (plus a metal spoon to stir them) the liquid's temperature falls again. If the consumer carries the container out for later consumption, the beverage cools still further.[22]

[BridgeTroll]

Absolutely... and as the consumer of said kabob you should be careful of flying flaming skewers...

[RiversideGator]

I suggest next time you order hot coffee, do not place said hot coffee between your legs.

[NotNow]

Stephen,

While I certainly feel sorry for the old woman's injuries, I cannot see how one could agree with the decision in this case.  Perhaps "older" or "less coordinated" folks should not attempt to open coffee cups in cars.  Or drive with cell phones in their ears.  Or do a myrian of other multitasking things.  One should know ones limitations.  Coffee is hot.  So are stoves and running motors.  This is a common sense issue.  I completely agree with the article. 

Certainly there are cases where a tort is justified.  The system just needs to be adjusted to deter these "fishing" lawsuits.

Oh, and one more time, you don't go to jail for letting your car insurance lapse.  You are disseminating bad information again.

[ChriswUfGator]

But it was not always this way.  Has tort law changed that dramatically??

Yes, tort law has changed subtly, but with great impact.

In the past, if the plaintiff contributed to the cause of his injury, he was precluded from winning. Makes sense, right? Today, the plaintiff must contribute to 50%-51% (depending on the state) to the cause of his injury before being barred from winning. In other words, even if the plaintiff was a negligent idiot, as long as a jury determines he was only 30% or 40% negligent, he can still sue the pants of someone else.

Another big issue is the concept of "duty." It gets very technical, but essentially courts have been slowly expanding the amount of duty against negligence that we owe to other people. This means more lawsuits.

The biggest issue is probably court costs. Unlike most of the rest of the world, in America the loser does NOT typically pay the winner's court costs. This means that some jackass and his jackass ambulance chasing lawyer can harass people with lawsuits all day. As long as they never cross the line into being legally frivilous they can sue on cases they know they'd probably lose and not have to worry about paying their victim... er opponent's legal fees. Why does this matter? Because most cases don't go to trial. They settle. Therefore scumbags go around and "fish" for settlements hoping that some poor business owner would rather settle than risk a trial. And if someone actually stands up to them and lets it go to court, they never have to worry about paying the other sides legal fees. It costs little more than the scumbag lawyer's time.

Your wistful longing for the days of pure contributory negligence, is silly. That doctrine never made any sense at all, and that's why the law was changed.

Under traditional contributory negligence, if you were 10% at fault, and the other person is 90% at fault, you're still denied all recovery. Tough luck.

Under the modern scheme of comparative fault, you would pay the first 10% of your damages, and the other person pays the other 90%, according to the percentage to which each party was at fault. This is just, fair, and makes a lot of sense. Some states even have hybrid models, as you mentioned, where if the Plaintiff is some percentage at fault (normally 51%), then he is denied recovery. This is less fair than pure comparative fault, but still makes more sense than the traditional doctrine of contributory negligence as an absolute bar to to recovery.

I think the problem lately, in my personal experiences, are businesses and business owners, city governments, a medical industry, and ESPECIALLY an insurance industry, who all think they should be able to do whatever the hell they want, without fear of any recourse. They have assembled a lobbying effort of gargantuan proportions, and are actively seeking to change laws to that effect.

But the problem goes deeper than that. The truth is, it's getting to the point where nobody does what they're supposed to anymore, or what they've promised to do, unless you make them. I could give countless, countless, countless examples of the stupid hassles I've had with city government, eBay members, car dealers, and even USAirways. I'm not one of those litigation shy folks, and if someone screws me then they're going to pay for it. But I have never undertaken a frivolous lawsuit, and in fact we already have a statute, 57.105, that clips anyone who files such a suit with sanctions and the other party's attorneys' fees. So, the law ALREADY fully addresses your concerns.

Bottom line, 90%+ of the time, the people who get sued deserve it. Pointing out articles and complaining about the 10% of the time things don't make sense gives everyone an incorrect impression of the condition of the American legal system.

Our society is rapidly losing any and all sense of personal responsibility, and nobody seems to have the common sense (since this thread is about common sense after all) to do the old "There but for the grace of God go I..." analysis. Meaning, if you gerrymander "tort reform" or "frivolous lawsuit control" so that you can screw someone and get away with it, then guess what...it's only a matter of time before someone else does it to you. And when you personally need to avail yourself of the justice system, then I suspect all of a sudden it wouldn't be so "frivolous" or "unfair" anymore, would it?