How Lawsuits Have Changed Childhood…and America

Reader — Welcome to the wisdom of Philip Howard, the lawyer, intellectual, and founder of Common Good, whose book “Life Without Lawyers” opened my eyes to how we got so risk-averse. Here’s that whole book boiled down, more or less, in a recent blogpost by Howard. It explains how we got to the point where we feel free to sue everybody for everything, and the effect this fear of being sued has. The red ink is my effort to BOLD his great points:

The Evil of Investing in Litigation, by Philip Howard

A side effect of the 1960s rights revolution was the idea that people had a right to sue for anything. Human suffering became an opportunity to get rich. Entrepreneurial plaintiffs lawyers like Dickie Scruggs, Mel Weiss, and John Edwards congregated at the intersection of human tragedy and human greed, and became tycoons. It was easy work for anyone with a knack for sales. Just find any human suffering—a baby born with cerebral palsy, a company that went bankrupt, smokers who got sick—and sue for the moon. It was all about emotion: “How much would it be worth to you to have emphysema?” The families of victims got rich. The lawyers, skimming a third or more out of multiple verdicts and settlements, got really rich. Class actions were the pot at the end of the rainbow. Scruggs reportedly got a billion dollar fee for settlement of mass tort claims on behalf of the State of Mississippi….

These direct costs of sue-for-anything justice are only the tiny tip of a far larger cost—a pervasive fear of litigation has replaced a sense of freedom and spontaneity in social dealings. A tidal wave of defensiveness has washed over American culture. When anyone can sue for almost anything, people start going through the day looking over their shoulders. Doctors waste billions in “defensive medicine.” Teachers no longer feel free to put an arm around a crying child. Businesses no longer give job references. Diving boards and seesaws disappear. Companies don’t take risks with innovative new products. Better safe than sorry. America’s can-do spirit turns upside down. Welcome to the culture of can’t do.

…Moreover, a lawsuit doesn’t just affect the immediate parties. What people can sue for establishes the boundaries of everyone else’s freedom. If a school in California gets sued when a child falls off a seesaw, you can be sure that schools in Massachusetts will remove seesaws….The solution—the only solution—is for judges and legislatures to draw the boundaries of who can sue for what as a matter of law. Every claim should first go through a legal gatekeeper, asking whether this claim might erode the legitimate freedoms of people in society. These rulings of law should affirmatively defend the freedom of people to take reasonable risks—like, say, children on a seesaw.

Read the whole Philip Howard blogpost here.

Lenore here: In short, the assumption behind the “You can sue anyone for anything” is that there should be NO RISK at all to anyone doing anything. When that attitude gets absorbed by the population, it is scared and angry all the time. Scared that something bad might happen and angry when it does, with no sense of proportion or what’s lost by outlawing all risk.  

I agree that lawsuits that ignore the reality that, say, SOMETIMES a child will get hurt on a seesaw MUST BE thrown out. Otherwise, nothing is safe enough and childhood becomes vanilla pudding. (Served room temperature, so no one gets burned, and eaten with one’s fingers, so no one chokes on a spoon.) – L

When we can sue anytime a child gets hurt, schools and park districts have to defend themselves.

When we can sue anytime a child gets hurt, schools and park districts have no choice but to pre-emptively get rid of almost all “risk” — like seesaws. 

, , , , , , , , , ,

64 Responses to How Lawsuits Have Changed Childhood…and America

  1. SOA February 25, 2014 at 9:58 am #

    I think it boils down to me to frivolous or not frivolous. I would not sue because my kid fell off the monkey bars and broke their arm. I would however sue the pants off them if they were not supervising my son when they knew he has a tendency to wander and he wandered off school property and got hit by a car. One is silly and nobody’s fault. The other is someone’s fault and is negligence and should not have happened.

  2. Michelle H February 25, 2014 at 10:10 am #

    The ski resort by me is a smaller resort, and it used to have a sled hill, and do tubing on Friday and Saturday nights. I was always impressed on the sled hill how people were good about taking turns and letting the person in front clear the bottom before they went. Tubing was great since if somebody in the family wanted to do night skiing, but others didn’t, there was the tubing option.

    2 years ago, they removed the sled hill. It was always a “game” of the older kids to try and go over the bottom edge to the other side. One of them did, and either ran into a family, or almost ran into a family. Said family threatened to sue, ski resort insurance company said, “you’re a ski resort, don’t do sledding.” No more sledding.

    Last year, in the middle of the season, they removed the tubing. Basically the way they did tubing was there were 2 guys on snowmobiles carting the tubes back up to the top of the hill while people would take the ski lifts to the top. The areas for tubing were dug out each night by one of the snowcats. I always wondered what would happen if somebody accidentally went over the side and hit one of the snowmobiles. Apparently that happened. Insurance company said “no more tubing.”

    We actually don’t ski there any more. The reason we did before was because they had all these great extras, but I’d rather pay a little more for season passes to the much bigger resort 15 minutes from this one.

  3. Michelle H February 25, 2014 at 10:11 am #

    I should add that the larger ski resort we now go to does tubing with a magic carpet, and 5 minutes from that is the best tubing hill in all of Colorado, so it’s not like there aren’t better options. It was just annoying.

  4. Mark Roulo February 25, 2014 at 10:16 am #

    “The solution—the only solution—is for judges and legislatures to draw the boundaries of who can sue for what as a matter of law.”

    If this is the only solution, then it probably isn’t going to happen. Judges and members of the legislature tend to be lawyers …

  5. anonymous mom February 25, 2014 at 10:42 am #

    This is great. One thing I have been thinking about lately is how profoundly our mindset toward hardship and tragedy has changed. It seems like we used to think that, when bad things happened, you’d get through it and come out stronger. More and more, we seem to believe that any negative event is going to inevitably scar you for life. And I think lawsuits have played a huge role in that.

    Because, so much of modern lawsuits has centered on psychological harm. If my kid falls off the seesaw and breaks his arm, and I feel like, eh, the school could have been supervising better but my son is none the worse for the wear, I’m not getting millions of dollars. If I argue that my son was forever traumatized by that fall, though, and he’s now suffering from PTSD as he recounts his horrifying experience, I can get millions of dollars from the school district.

    If a church childcare worker left the kids unsupervised and a 7 year old boy showed a 5 year old girl his penis, if you respond by thinking it’s not ideal and the nursery might need a better policy about always having adult coverage but the kids will all be okay, you aren’t getting anything. But if you claim the little girl will now suffer trauma the rest of her life from the sexual abuse she experienced at the hands of that terrible little boy, and that she will never be the same and cannot live up to her full potential, suddenly you can sue both the church and the boy’s family for all they are worth and more.

    In auto accidents, many times the large awards come not from physical medical costs but from claims of PTSD, even from what were relatively minor accidents that didn’t cause serious injury.

    Lawyers have pounced on the idea that people are completely emotional and mentally fragile that the tiniest thing will destroy us, and many psychologists have been happy to go along. And I think this has changed how we all think about tragedies, so that we assume that when even a minor tragedy or difficult event occurs, people will be forever traumatized and can never recover, rather than believing that they will rise to the occasion and come out stronger. We especially seem to believe that children are uniquely fragile, rather than that they are amazingly emotionally and mentally resilient. Kids grow up in war zones in many cases without any lasting psychological issues, and yet we believe in the U.S. that being teased on the playground or not invited to a birthday party or playing “doctor” is going to cause lifelong harm a child will never recover from. At this point, I think we could do away with lawsuits but unless that view changed, we’d still see just as much fear.

  6. BL February 25, 2014 at 10:42 am #

    @Mark Roulo
    “If this is the only solution, then it probably isn’t going to happen. Judges and members of the legislature tend to be lawyers”

    How about common sense from juries?

  7. Attorney at Large (@attyatlarge) February 25, 2014 at 11:09 am #

    Hopefully I won’t end up regretting posting this, but I am tired of the anti-lawyer rhetoric.

    Full disclosure: I’m a plaintiff’s attorney who mostly represented victims of sex abuse. I’m also a Free Range Parent who was looked on askance because, among other things, I sent a five-year-old into a public bathroom. Alone. (A lot of “well-intentioned” people lectured me on it.) I’m not really sure how to foster independence without letting a kid have some, though.

    But.

    If the powers that be really cared about research and looked at statistics, they wouldn’t pull playground equipment. But they are easily spooked (dare I say cowardly?) and don’t want something happening on their watch, and it’s very easy to say, “Oh, our lawyers say we have to do this or we might get sued.”

    Please.

    I get it. People hate frivolous lawsuits. They hate the guys on late night advertisements. So do I, because the animosity gets directed at all of us. When we hear that something we like (insert: monkey bars, swings, slides, see-saws) has been taken away from us, we get angry. I’m there with you.

    But we have lots of rules in place to make sure frivolous lawsuits never get to trial. Some things to remember:

    First: there would be no lawsuits without people wanting to sue. A good attorney filters cases on intake and separates people who are really injured because of someone else and people who are injured because of dumb luck. I talked more people out of filing a lawsuit than I ever drafted a pleading for.

    Second: there would be no successful lawsuit without a showing of negligence (or worse) on the part of the defendant. That is, someone got really, really injured and the defendant could have taken a reasonable precaution but didn’t. If you’re talking big dollar lawsuits, you can bet the defendant’s behavior was willful and abhorrent.

    Third: without real culpability, the case would get tossed at the pleadings stage or following a motion for summary judgment. In every case I worked, there were individuals who knew a person was molesting children and they either actively sheltered the pedophile (and provided him with additional victims) or said nothing and knowingly allowed other children to be harmed.

    Fourth: Juries don’t like frivolous lawsuits, either.

    Fifth: Just like hearing about one abduction/murder on the news creates terror in parents all over the world, so the news of one frivolous lawsuit creates contempt everywhere else. Just because you hear about one or two doesn’t mean it’s happening all over all the time.

    I could go on–obviously this is my soapbox–but as I told a doctor friend who objected to John Edwards as a political candidate (before we had reason to hate him on general principles) just because he was a lawyer who sued doctors–some doctors need suing. I’m not talking failure to diagnose cancer, but putting a kid under sedation and then sexually assaulting him.

    The most important thing to remember is that our legal system isn’t set up to dispense “justice,” it’s set up to dispense money. And that molested kid is going to need a lot of therapy, and that therapy costs real dollars.

    So, in the meantime, I’ll let my kid go to the bathroom alone and play at the neighborhood park on the decades-old see-saws (OMG, pinch points! splinters!), steel slides (OMG, falling! Tetanus! Cuts!), and steel carousel (OMG–I can actually remember the gouging of my shins from when I was a kid!).

    Because what are the odds of that freak accident happening, again?

  8. anonymous mom February 25, 2014 at 11:14 am #

    @Attorney at Large, if a doctor put a child under sedation and then sexually assaulted him, presumably he would be facing serious criminal charges? I don’t think the issue is that nothing should be illegal, by any means. But, and I mean this as a genuine question, why should the family of that child get millions of dollars? Why isn’t that doctor going to jail for a VERY long time, if not the rest of his life, enough justice? It’s not like any amount of money will undo what was done. And if there is insufficient evidence to convict him in a criminal court, I’m not sure I like the idea of a civil court assigning monetery damages based on a lower burden of proof.

  9. Shawn B February 25, 2014 at 11:25 am #

    It used to be if you fell off a piece of playground equipment at school and broke an arm you’d get a cast, and learn not to do that anymore. Now it has to be someone’s fault.

  10. Gillian February 25, 2014 at 11:29 am #

    I am with AAL. As a lawyer(defense lawyer) I see lawsuits get filed all the time. I see how seldom these big name ‘ridiculous’ cases get filed, and when they do, I see them dispensed with immediately unless the defendants (ie my clients!) have done something that the reasonable person would find to be heinous – like (hypothetically, not a real case) they know a stairstep on their property is broken, they research the cost to fix it, decide it costs too much to fix and turn a blind eye, and then someone falls through the step and is seriously injured. As AAL days – juries are made up of people like you, and they almost always get it right. Most negligence suits that do go through end up with a very modest verdict – four figures, and it has to be justified by expenses. It is the same fear we talk about on free range kids that pervades the decision making here. There is also some insurance at play – insurance companies read the big verdicts and write exclusions into their policies. Then that adds to the risk – if something bad does happen, even though the business is insured it won’t be covered.

    People love to hate lawyers, but the disappearance of diving boards is not our fault. Someone somewhere was negligent with a diving board, someone innocent was injured, and everybody else wrote the ‘negligence’ out of the story and just presumed that a diving board alone is too great a risk because of big bad lawyers, and started pulling them. But without unreasonably bad behavior on the part of the diving board owner, there would have been no award originally. Let’s not forget that as we do the typical, predictable lawyer bashing.

  11. Attorney at Large (@attyatlarge) February 25, 2014 at 11:29 am #

    @anonymous mom Yes, there are often criminal cases in tandem. The difference is that–at least in my state–it isn’t easy to get compensation for victims. If the defendant has no cash resources (or has shielded them), the victim is out of luck. The state fund may kick in a very limited dollar amount and only after certain conditions are met.

    If we lived in a place where therapy and medical car were free, I’d bet there would be significantly fewer lawsuits. If you step outside the doctor-as-perp box (and even so, it’s not a perfect analogy)and you look at Canada: health care covered and fewer lawsuits per capita.

  12. miker February 25, 2014 at 11:36 am #

    I’ve been a relatively risk-averse person my whole life, often to my eventual regret, but the level of attempted risk avoidance in our culture today is staggering, even to me. There’s this massive shared denial that some bad things are inevitable, and that no matter how careful we may be, we are all eventually going to die.

    Companies that play fast and loose with our safety and health deserve to get in trouble. Fear of litigation is a powerful motivator to prevent corporations from being reckless in the name of expanding profits. However, I agree with the thrust of this article that in today’s environment, the mere occurrence of an event involving harm is seen as de facto proof that someone was negligible and must be held to account. The idea that getting hurt automatically qualifies a person for compensation is harmful to our society in many ways. The way we view litigation needs to change.

  13. Brooks February 25, 2014 at 11:49 am #

    There is another side to this that the writer does not state (though he may in another forum). That is that insurance companies also enrich themselves over this in the form of overhyping the actual risks involved. Here in the state of Alabama, Insurance companies pushed for major tort reform based on the massive number of million dollar lawsuits, but a study showed that at that time, in the entire history of the state, there had only been 7 multi-million dollar payouts. The risk the insurance companies state is wildly overstated relative to the actual risk.

  14. Warren February 25, 2014 at 11:51 am #

    There is no acceptance of risk anymore.
    When someone does anything there is risk, we used to accept that. Now it is expected that all risk has been taken away, and if something happens then someone is to blame.

    Until the public are willing to accept that sometime bad things happen purely by chance, with no fault of anyone’s then nothing will ever change.

  15. Kailin. February 25, 2014 at 12:32 pm #

    I also can’t help but believe that the lack of a real social safety net in the U.S. contributes to this environment. If people did not have to worry about medical bills, taking time away from work to care for an ill or injured loved one or being fired if they try, etc., they might not be so quick to sue.

  16. J.T. Wenting February 25, 2014 at 12:35 pm #

    @BL “How about common sense from juries?”

    not going to happen. Juries are made up of people seeing dollar signs.
    So whenever there’s litigation, all they see is their own potential to get rich quick ™(r) on something similar in the future.

  17. Bill K February 25, 2014 at 12:48 pm #

    Strikes a chord. I remember the great litigation explosion in the 80s, and how things started to go downhill from there. You can probably chart the beginnings of helicopter parenting from that point as well.

    Around then, Andrew Tobias wrote a terrific book around 1979 called “The Invisible Bankers”, about the insurance industry. Imagine a bank that tells you how much to deposit regularly, and you have to sue to withdraw. But if you’re successful, your returns are way out of proportion to anything you’ll make at your neighborhood S&L, or in the stock market. You need a lawyer. And we’re all the poorer from the inevitable outcomes.

  18. SOA February 25, 2014 at 12:58 pm #

    My mom was on a jury for one of those stupid lawsuits once. Basically it was a case where a cave tour and a woman was walking backward running her mouth to her friends and fell and injured herself. She wanted money.

    Well here was my mom’s thought process-first of all you know you are going on a cave tour meaning un even floors, steps, drops, low ceilings and not good lighting. So would you not have enough sense to make sure to be very vigilant in your walking thus not walking backwards running your mouth to friends? I mean DUH! So my mom voted against giving her a penny.

    But my mother was overruled by the other jurors and I think they gave her less than she was asking but some money and my mom was pissed about it. It was basically compromise or spend days/hours arguing about it in the jury box. Now me, I can be stubborn and I might have been the type to just say “Nope” not giving in and let it take hours/days and not give in.

  19. Donna February 25, 2014 at 1:01 pm #

    I’m with AAL and Gillian. I am currently a criminal law lawyer, but in a former life I was a big time litigation defense lawyer (well, I wasn’t big time, but the law firm was). We were the firm you came to when you are facing billion dollar lawsuits. We got the occasional crack pot case (we were involved when the fat kids sued McDs), but most were legitimate complaints.

    Sometimes suing is the only redress. There is no true ability to sue the government in A. Samoa. You can sue and win, but a judgment will never be paid due to the legislative structure so it is all pretty pointless. The hospital (government run) had a doctor who had a death rate that was 4 times that of any other doctor in the hospital. After YEARS of complaints, some of the other doctors finally got the administration to get rid of him last year. New administration comes in and I read in the Samoa News last week that he is employed at the hospital and free to kill more patients again.

    Sometimes when the system that is supposed to protect people fails, the people need to be able to do something about it to protect themselves. In a world with lawsuits, this guy is rightfully run out of business. In a world with lawsuits, the hospital actually fires a completely incompetent doctor so that they aren’t buried in lawsuits. Fear of lawsuits is not a bad thing to extent that it makes people do the right thing.

    The problem is with a populous who believes in get rich schemes and retribution. I am amazed at the number of people who insisted that I should sue the hospital when I was ODd on anti-nausea medicine after surgery. Absolutely nothing happened other than I was loopy longer than I would have been otherwise. But many said that I should have sued for millions because something COULD HAVE happened. I could have had a heart attack (true, but I didn’t). I could have died (true, but I didn’t). Not lawyers chasing after me, just average Joes who thought that I needed to get rich from a mistake that had no ramifications for me whatsoever.

  20. SOA February 25, 2014 at 2:09 pm #

    Another reason people sometimes sue is to enact change. Sometimes the only way to make someone change their ways is by hitting them where it hurts the most-the wallet. I wish that was not true but a lot of the time it is. You can tell someone all day long this is not good, we need to do something about this, but they won’t listen till it ends up costing them money.

    I had to threaten to sue the school system multiple times before they finally were willing to do what needed to be done to help my son get a proper education. They were doing the bare minimum and were going to see if they could get away with it. Threatening to sue the crap out of them, lit a fire under their butts and then they finally came up with a plan to properly help him succeed in school.

  21. Andy February 25, 2014 at 2:21 pm #

    Offtopic: I think that if you feel the need to bold something, it might be better to put bold on it (instead of red) and do it only little. Maybe it is just me, but the so much red in the middle makes it harder to read and reminds me of cheap advertisements.

    Normally when I land on web page with colored pieces of text, I close it instantly.

  22. Andy February 25, 2014 at 2:28 pm #

    @Anonymous mom “Kids grow up in war zones in many cases without any lasting psychological issues”

    Psychological issues of children that grew up in war zones or other similar situations are well documented. Many of those are lasting and some effects can be even transmitted to next generation (through the way they parent their own children later on). The last point was documented in case of holocaust survivors.

    Kids are resilient to survive fall or sight of other kids body, but war is entirely different game.

  23. Andy February 25, 2014 at 2:36 pm #

    @Attorney at Large Let say I have done nothing wrong. Under that assumption:

    * How much money I need to pay in order to win the lawsuit if it goes that far?
    * How much money I need to pay to lawyers if I decide to settle anyway?
    * And finally, if the thing is very easy, how much money I need to pay to my lawyer to make it go away?

    Those amounts do matter, because theoretical chance to win does not matter if I do not have money to pay the lawsuit.

  24. gpo February 25, 2014 at 2:40 pm #

    The one that has gotten to me over the years is this. At my local park district gym where I am a member they have a pool. When there is lap swim for adults there is no lifeguard on duty. Basically I can be in there all by myself and drown no problem. I have asked if my competitive swimmer of a daughter can do laps and am always told no. The major reason I got from the folks in charge is that it is because of insurance issues. Now of course I would not leave my daughter alone and I would stay and watch. I even offered to sign a waiver, but no dice.

    The best part of this crazy policy is that some lifeguards aren’t 18 yet. So while they can do the job of a lifeguard they can’t do laps. That is ironic.

    The sad thing is my daughter and her teammates can swim 10 times better than any adult who swims there. She swims for 2 hours a practice. Most adults swim for 10-15 mins and are done.

  25. Emily February 25, 2014 at 2:54 pm #

    >>They know a stairstep on their property is broken, they research the cost to fix it, decide it costs too much to fix and turn a blind eye, and then someone falls through the step and is seriously injured.<<

    @Gillian–This stood out to me, and I think the solution is, yet again, community. If people got to know their neighbours, then they might strike a deal like, "Hey, if you can fix my step, I'll babysit your kids on Friday night, so you and your wife can go on a date night." As it is, in a lot of neighbourhoods, people don't know each other–in fact, most modern houses are designed so that people can walk directly from house to garage to car to work/school/the gym/shopping/whatever, without interacting with any of their neighbours. So, since people don't know each other, they don't reach out and help each other like that, so they have to call professionals and spend tons of money whenever anything breaks, or, for that matter, whenever they need or want anything that they can't do for themselves. So, let's say that the residents of Hypothetical Street include a really good handyman (or handywoman, for the sake of gender equality), a person who can paint faces and make balloon animals, a person who's really good at baking, a teenager who loves kids, and enjoys babysitting, a person who loves animals and will happily pet-sit, a person who's trained in First Aid, and is always willing to patch up kids who get injured playing outside (but is never asked to do so, because the kids don't play outside), and a guy who happens to have a riding lawn mower AND a snow blower. All of those skills and resources could be really useful to a lot of people, in a lot of different circumstances, but it doesn't do much good if they don't know each other. If they did, they wouldn't have to outsource everything.

  26. Donna February 25, 2014 at 3:08 pm #

    Andy – The answer to your questions is — if you don’t have enough money to even pay for a lawyer, you are highly unlikely to ever be sued. Suing a poor person in hopes that they will one day gain wealth is a waste of time and money.

    These types of cases are mostly handled on the plaintiff side on a contingency fee basis. That means that the plaintiff plays his attorney absolutely nothing until the case is won and the judgment paid. No attorney is going to take a case where even if they win millions, they can never recover a dime.

    In the US, most of these suits are handled by insurance companies and not individuals. If someone trips on your broken step, your homeowner’s insurance hires the lawyer and pays his bills. The suit is against you in name only as you have no say whatsoever.

  27. Donna February 25, 2014 at 3:10 pm #

    That should be “pays his attorney” although a number of people do play their attorney.

  28. Emily February 25, 2014 at 3:23 pm #

    @Donna–What happens when a poor person (or even a middle-class person, because I’ve seen how much lawsuits can cost) hires a lawyer on contingency, and loses? Their client can’t afford to, and the other side doesn’t have to pay, because they won, so does that mean the lawyer gets nothing? Win or lose, that lawyer still invested a ton of time and effort into the case, that could have gone towards other clients who are paying upfront.

  29. Emily February 25, 2014 at 3:26 pm #

    Also, from the “community” angle, I forgot to mention that people rarely sue people who they know and like, so there’s another benefit.

  30. Donna February 25, 2014 at 3:54 pm #

    Emily –

    A lawyer is entitled to get back the actual out-of-pocket costs that he fronts the client – filing fees, deposition costs, medical record fees, witness fees, trial exhibits, etc. – regardless of result. But if the client can’t pay, the client can’t pay. If the client owns property, you can place a lien on his property, but that is the best you are going to be able to do.

    However, if a lawyer is paid on a contingency fee basis, he gets absolutely nothing in attorney fees if the client loses. His agreement with his client is that he gets a percentage of any amount that the client receives. If the client receives zero, then 1/3 of zero is zero.

    This is why frivolous law suits are just not as common as people want to make them. Yes, there are attorneys who take huge numbers of cases and hire associate attorneys that they pay peanuts to work them so that they can eat the costs of losing some cases (those are the ones who advertise on TV). But most attorneys can’t afford to spend thousands of dollars of their own money up front and invest 100 hours into a case that is frivolous from the get-go and will get them nothing in the end.

  31. Donna February 25, 2014 at 4:13 pm #

    You also have to remember that many injury lawsuits are between insurance companies and not individuals. Insurance companies are for-profit businesses and lose money if they have to pay out for injuries. If we had a single payer medical system, medical insurance companies would not be around to sue everybody they can think of to avoid paying our medical bills.

    Look at it this way. I jump into your empty pool and break my back. Now my medical insurance is on the hook for millions of dollars for the rest of my life because I was stupid. They could shrug their shoulders and take millions off their bottom line. Or they could sue your homeowners insurance for you having an empty pool and not notifying me before I jumped in. Since they have attorneys already on staff to do the work, lawsuits are fairly cheap for them. Which do you think they are going to do? Willingly lose millions or pay a couple thousand in the hopes that they will get some of those millions back from your homeowners’ insurance?

  32. Captain America February 25, 2014 at 6:02 pm #

    You know, I’m so glad that I wrote the law school and told them I’d want to delay admission a year. . . and then a year later told them “no thanks.”

    I think much of the responsibility isn’t on lawyers. They’re trying to make money. It’s on judges who don’t just look at a case and say, “sheer nonsense” and toss it out.

    Of course, the Stories We Tell—our commonly-held, shared assumptions about human psychology—have shifted quite a bit, hence, the “irreparable damage” notion, etc.

  33. Kenny Felder February 25, 2014 at 8:18 pm #

    I’ve always felt that lawsuits were at the heart of the problem. Judges will not change this, and juries will not change this. The law itself needs to change. (Although a few Supreme Court decisions setting reasonable precedents would be nice.) I’m not a lawyer. Savvy lawyers need to lead this charge.

  34. Erica February 25, 2014 at 9:37 pm #

    People always seem to forget that for every lawyer bringing a ridiculous case, there’s a client hiring them to do it.

  35. Evan February 25, 2014 at 9:45 pm #

    The reason Americans sue over everything has nothing to do with the “1960s rights revolution”. It’s because for a lot of people, recovering damages from somebody else’s liability insurance is the only way they can avoid being bankrupted by hospital bills.

    True universal health care would reduce litigation by a substantial margin.

  36. JP February 25, 2014 at 10:32 pm #

    anonymous mom – I agree entirely.
    Sadly, a lot of this is “follow the money.”
    But the flip side of it is an emotionally-atrophied population.

    I get the feeling that in many distant corners of the world, folks might just wonder a little at what kind of grown up babies our society is breeding.
    On the other hand, in many rather corrupt societies in this world, they’d understand perfectly. Turn our laws into Barnum and Baily 3-ring legally-loopholed casino jackpots, and we see what happens.

    And of course, the result is a population put in a straight-jacket.
    Now all it takes is a few (smarter) lawyers to figure out how to get us out of this mess.

  37. Reziac February 26, 2014 at 12:19 am #

    SOA says:

    “I would however sue the pants off them if they were not supervising my son when they knew he has a tendency to wander and he wandered off school property and got hit by a car. One is silly and nobody’s fault. The other is someone’s fault and is negligence and should not have happened.”

    I don’t think you’ve thought this through. The only way for a school to safely confine your wandering son is to be in permanent lockdown (because if any child can ‘escape’, your child might also ‘escape’). Is that fair to the other children, who might be perfectly competent to walk home for lunch on their own?

    And if your son tends to wander beyond the norm, how is that different from if another mom’s son tends to have food allergies? If restrictions are imposed to mitigate an individual’s unusual problem, that individual’s problem is made everybody’s problem. No child can leave the campus; no child can have peanut butter in their lunch. It’s the fundamentally the same issue.

  38. Lauren February 26, 2014 at 3:06 am #

    Vanilla pudding?! Diabetes, ADHD, not to mention the children with milk allergies!!

  39. Andy February 26, 2014 at 3:39 am #

    @Donna Yeah, but how much money is it? I am imagining small to middle sized business. Can those pay for full lawsuit?

    What I know for a fact is that most software companies can not afford to pay for lawsuit if they are hit by bogus software patent. They all prefer to paying license fees even if they are think they would win. Going to lawsuit is too expensive, too stressful and too risky even for profitable companies.

    It takes a company of a size of IBM to beat patent trolls.

    So, I’m wondering whether there is something similar with liability. I can easily imagine them being able to pay small settlement and finding it cheaper then fight. Then it might make sense to do dummy measures just to get trolls go away – it is about negotiation with troll.

  40. Andy February 26, 2014 at 3:40 am #

    “They know a stairstep on their property is broken, they research the cost to fix it, decide it costs too much to fix and turn a blind eye, and then someone falls through the step and is seriously injured.”

    It is interesting question. If I see broken steps in front of me and step on them, should I be entitled compensation if I hurt myself on them?

  41. nathaniel February 26, 2014 at 5:36 am #

    I am going to have to disagree with this article, and further I think it harms the free range philosophy. As has been noted by other commentators, suing is not the same thing as winning. I challenge people to find me examples of people actually winning and collecting large sums of money on truly ridiculous lawsuits (for example the famous McDonalds coffee was actually legitimate).

    However the scare mongering about these lawsuits causes people to believe they will be sued if they themselves don’t take ridiculous and unneeded steps to limit their liability. They don’t and they should not, but the steps that are taken do go against free range ideas because people mistakenly think they are things they need to do.

  42. Donna February 26, 2014 at 5:56 am #

    Andy – Cost is going to depend on the lawsuit. Attorney fees vary greatly by attorney. This type of lawsuit is also charged by the hour. If the case resolves quickly, it could resolve at 1-2 thousand in attorney fees. If it goes to trial, it would be substantially more. Lawsuits at my firm cost millions, but we didn’t represent small or medium sized businesses.

    That said, you also have to remember that insurance will possibly be paying for litigation, not the business. A middle-sized business will most likely have liability insurance. A small business may or may not.

    My ex owned a small airplane parts business (sport planes, not commercial). He got sued twice while we were together, both stupid. They did not have liability insurance. Liability insurance for their business was cost prohibitive (and they were anti insurance anyway). The first was dismissed quickly. The second took longer but was also eventually dismissed. Neither cost huge amounts of money. The company was not sued in the 10 years prior nor has it been sued in the 10 years since. They also didn’t care about a judgment against them particularly since they planned to declare bankruptcy, discharge the judgment and reorganize under a different name if it happened.

  43. Andy February 26, 2014 at 6:04 am #

    @nathaniel The legitimacy of famous McDonalds coffee lawsuit is not really that much established. Quite a few arguments used in favor of its result are unscientific or inaccurate. I read about it and found the argumentation for it very unconvincing.

    But mostly, even if that result is legitimate, it still runs against most people intuition. It tells me that legal outlook on what is safe requires much more safety then I would guess, but without giving me clear guideline for future actions.

    Which essentially means that if that is how decisions are made, law requires me to err at the side of caution against my own judgement and/or outsource safe decisions to lawyers.

  44. Donna February 26, 2014 at 6:53 am #

    Andy – Just because you disagree with the results doesn’t make them illegitimate. It simply means that you disagree. Your view may not be legitimate.

    I am not sure what intuition you think the result is against. I agree 100% with the view that something sold into a vehicle through a drive through window should be safe to consume in said vehicle and not cause 3rd degree burns requiring skin grafts if spilled. THAT seems like intuition to me. That may mean that McDs coffee needs to be served at a lower temp than coffee brewed at home.

  45. E. Simms February 26, 2014 at 8:26 am #

    By BL Tue Feb 25th 2014 at 10:42 am
    @Mark Roulo
    “If this is the only solution, then it probably isn’t going to happen. Judges and members of the legislature tend to be lawyers”
    How about common sense from juries?
    **************************************************************
    Frivolous litigation has to be stopped before it gets to a jury because by that time the defendant could be financially, and possibly socially, ruined.

  46. E. Simms February 26, 2014 at 8:47 am #

    @Attorney at Large
    “But we have lots of rules in place to make sure frivolous lawsuits never get to trial.”

    “without real culpability, the case would get tossed at the pleadings stage or following a motion for summary judgment.”

    Yet we have cases like this: http://en.wikipedia.org/wiki/Pearson_v._Chung

    However, I do agree with you that most of the collateral damage from frivolous lawsuits is caused by overreaction and a “cover my ass” attitude. I think that the “legal gatekeeper” idea is the best solution. Frivolous suits can be stopped before the defendant is financially ruined. Any plaintiff whose lawsuit is rejected at this point should have to pay the defendant’s court costs, which I hope would be minimal at that point. Or maybe the attorney who took the frivolous case should have to pay the court costs and be barred from passing them along to his client.

  47. BL February 26, 2014 at 9:32 am #

    @Donna
    “That may mean that McDs coffee needs to be served at a lower temp than coffee brewed at home.”

    Why? Hot is the mormal and preferred way to serve coffee. Hot things require extra care in handling. Why is it McDonald’s fault if someone spills it?

    Suppose someone brews coffee at home in a Keurig brewer, takes it in the car, and spills it (causing burns). It is the fault of the Keurig company? Why not?

  48. SOA February 26, 2014 at 9:40 am #

    Don’t know where you are from, but around here NO kids ever are allowed to leave the campus period.

    It has nothing to do with other students. It has to do with my son needed an aide and they were being too cheap to pay to give him one at said time. Because a teacher of 20 students cannot solely be responsible for all those kids plus a kid that will leave the classroom every time she turns her back. School systems around here are cheapskates and will try to get away with doing the bare minimum unless the parent raises hell to make them do more.

    So that was when the threats of lawsuits came out and I made it known they either fix the problem of him being able to sneak out of class and wander the building or should something happen to him when this happens, let it be known I plan on suing them for all the money I can. Once they realized I meant business, they fixed the issue.

  49. SOA February 26, 2014 at 9:45 am #

    Also sorry if that is not free range enough for you, but I did not want my 5 year old being like that one autistic boy on the news that wandered out of school and ended up drowned in a river. If the school system requires our kids to be there, they are tasked with keeping them safe within reason. It is within reason, to think they would not let a 5 year old with autism wander away and get lost.

    I would never sue for him falling on the playground. I would absolutely sue if they failed to take the measures I told them to take and something happened because he was allowed to wander out of the classroom, out of the building and off campus.

  50. E. Simms February 26, 2014 at 9:51 am #

    By BL Wed Feb 26th 2014 at 9:32 am
    @Donna
    “That may mean that McDs coffee needs to be served at a lower temp than coffee brewed at home.”
    Why? Hot is the mormal and preferred way to serve coffee. Hot things require extra care in handling. Why is it McDonald’s fault if someone spills it?
    Suppose someone brews coffee at home in a Keurig brewer, takes it in the car, and spills it (causing burns). It is the fault of the Keurig company? Why not?
    **************************************************************
    Coffee brewed at home is generally around 140 degrees. McDonalds had a *policy* of keeping their coffee at 190 degrees. McDonalds also had numerous complaints about the coffee temperature before the big lawsuit.

  51. Matthew February 26, 2014 at 2:21 pm #

    There likely could be some reform, but the lawyers below are right as well. In the case of real damage and negligence, there’s likely no problem. It’s nice, clean , and objective. Kid falls off of monkey bars? Whoops, accident. Playground equipment isn’t maintained and the ladder falls off? Negligence.

    Suing for social factors is an issue. When I was a restaurant employee, I was blocked by management from tossing out a bitter, racist, old woman that insisted on a black waiter because “that was their place” because of fear of a discrimination lawsuit. “Bullying” lawsuits seem to be gaining in popularity.

    Next, as a chemical engineer, I have seen some “stuff”. Burden of proof is hard even in legitimate complaints. Let’s say WV sees double the cases of cancer X in 10 years. The company is bankrupt, the owners are protected from being sued, and on burden of proof it can be demonstrated 50% of the theoretical cancer cases are due the spill, but it can’t be proven which of them.

    I’m all for free range, and some stuff is dangerous, and we accept that risk. Lawsuits are justified when someone else skews the accepted risk or makes decisions that add risk without our consent, or lies about the level of risk. Driving is dangerous, but someone not following traffic laws has accepted additional risk on our behalf. If it results in injury, costs for all lifetime impacts of that injury are reasonable, and as it happens, lost wages, physical therapy, “escorts” since dates are hard to get all scared up (kidding, sort of), runs into large values.

  52. Donna February 26, 2014 at 2:31 pm #

    @BL –

    You really think coffee, or any liquid, should be served hot enough to cause 3rd degree burns requiring skin grafts when spilled? If so, please don’t ever invite me for coffee.

    As E. Simms pointed out, McD’s heated its coffee to higher than industry standards. It was told repeatedly to turn it down, but refused because it said that it needed to sell its coffee super hot so that it was drinking temperature when the purchaser got to his/her destination, despite the fact that numerous studies showed that the vast majority of people who buy coffee in drive-thrus consume it immediately rather than waiting to get to their destination.

    If you are selling something that you know is probably going to be consumed immediately, it needs to be safe to be consumed immediately. If you know you are selling something that is 100% definitely going to be transported in a moving vehicle, it needs to be safe to transport in a vehicle. A consumer is not wrong for assuming that the coffee that they buy at McDs is safe to be consumed when they buy it and not 15 minutes after they purchase it. They are also not wrong in assuming that if they spill it, as you are highly likely to do in a moving vehicle, that they are not going to require SKIN GRAFTS.

  53. Andy February 27, 2014 at 5:08 am #

    @Donna Nowhere written Industry standard determined as average of coffee temperatures in some stores around? Please.

    McDonalds coffee was not hottest around, not even close to be hottest around – when measured independently. It was only hotter then average.

    Second, the times need to burn yourself used during that trial were wrong. They are very off. The scientist they used estimated them somehow, but later similar court in UK used different more precis method and came to entirely different numbers.

    The thing is, McDonnalds coffee suit court result is outlier, all similar suits ended differently.

    @E. Simms Home coffee has that temperature only if you use special device most people do not use.

  54. Donna February 27, 2014 at 7:18 am #

    Andy –

    You seem to believe that the only legitimate lawsuit is one in which the plaintiff should clearly win and the defense has absolutely no defense whatsoever. That is as frivolous of a lawsuit as one in which the plaintiff has no chance of winning. If a person/company clearly screwed up, he/it needs deal with the consequences of that and not waste the time of courts. These type of lawsuits as much to blame for increased safety regulations as plaintiff’s frivolous claims. If I know a manufacturer is not going to pay for injuries due to their faulty equipment without dragging me through legal battles for years, I am going to be far more interested in making sure that those injuries never occur.

    A legitimate lawsuit is one that has legal and/or factual issues on which the parties cannot agree and which need neutral arbitrators to decide. That is clearly this case as scholars have now been debating it for 20+ years. Obviously McDs had arguments in their favor and the lady had arguments in hers. THAT is what makes it a legitimate lawsuit.

    As for who should have won, I don’t know. I didn’t sit through the trial or appeals. The people who did are the only people who I think should have a definitive answer as to their belief either way, not a people who just read a bunch of slanted articles (and all articles are slanted) on the internet (or law school).

  55. E. Simms February 27, 2014 at 10:06 am #

    @Andy “@E. Simms Home coffee has that temperature only if you use special device most people do not use.”

    I think you are the only person who has ever heard of this “special device.” I have used over a dozen different coffee makers purchased in the US over the course of my adult life. None of them (to my chagrin) have been able to get the coffee hotter than 150 degrees, an even that was a stretch for the best of them. I finally settled on a french press and boiling water.

  56. Amanda Matthews February 27, 2014 at 1:04 pm #

    My 6 year old daughter fell and hurt her finger while playing ball with a friend – the friend threw the ball, hit her and she fell. She came inside and showed me. The finger was potentially broken.
    We went to the ER because that is what I was always told you do when a kid has a potentially broken bone. We have health insurance, which we pay quite a bit monthly for. They are suppose to cover things like ER visits.

    Nurses and doctors looked at the finger and said it may be broken. They needed an x-ray to tell.
    A nurse asked us what happened. First, he asked me.
    “She was playing outside and fell down.”
    “Why?”
    “Why??”
    “Why did she fall?”
    “Uh… I don’t know. Because kids fall down sometimes?”

    The he asked my daughter. My daughter said it was the friend’s fault. (Now I know this kid does not throw particularly hard or anything. I assume my daughter fumbled for the ball and happened to fall while trying to catch it.)

    So then we had to wait for the x-ray. While we waited, my daughter was given a coloring book that had a story about a bunny that fell and hurt his arm and went to the ER to find out if it was broken.

    Anyway, we got the x-ray, and it was just sprained.
    A few weeks later, I get a bill for the full price of the ER visit, doctor consultation and x-ray. Insurance won’t pay it, the bill says. Wtf?

    I contacted my insurance company and was told that since it was the other kid’s fault, I have to sue his parents into paying for it.

    I talked to some other parents, and was told I was stupid for going to the ER for a sprain. That a sprain isn’t an emergency and therefore the insurance company is right in not paying the bill. Uh, doctors and nurses needed an x-ray to tell it was a sprain – How was I suppose to know? And why do they have a stack of coloring books in the ER about this exact thing if I’m not suppose to go to the ER for it?

    Should *I* be stuck with this thousands-of-dollars bill? No. I pay thousands of dollars to the insurance company so that I’m NOT given these bills. But they say I’m suppose to sue my neighbors for the crime of our children playing together?

    I’m not about to do that, but I’m fortunate that I can afford to just pay the bill. If I couldn’t, I would be left with little choice.

    So, a big part of the problem is that companies are putting people in positions where they HAVE TO sue to be able to pay for medical care. It’s a cumulation of SEVERAL things being screwed up in the US – insurance companies, health care prices, etc. – not just lawsuits.

  57. John February 27, 2014 at 1:51 pm #

    When my grand-nephew (my niece’s son) was 16, he had a dental appointment so my niece Julie and I had planned to drop him off at the dentist (it’s usually a long wait there)and then run some much needed errands together. Well, our plans needed changing and we were drastically inconvenienced BECAUSE that particular dental office had a policy which stipulated that no children under the age of 18 were to be left unattended by an adult in the waiting room. Now how stupid is that and what is the purpose of that policy? What is it trying to prevent? I’m sure the policy was drawn up in fear of lawsuits.

    Such as: What if he’s naughty and disruptive and his mischief causes injury to another waiting room patron? Then the injured patron sues the dental office because this minor should have been supervised. Well, shouldn’t the parents of the kid be sued and not the dental office? Goodness gracious, the kid was 16, not 6!.

    What if he’s abducted by a stranger? Well, how is the dental office suppose to prevent that? By not allowing 16-year-olds to be in the waiting room unattended? But it’s the parents’ choice to leave the kid in the waiting room unattended so how can the dental office be held accountable for that? The odds of that happening are probably 1 in a gazillion anyway! I mean, c’mon, a 16-year-old?

    So what if the kid trips and falls and breaks his leg on the way to the bathroom? How can a parent or guardian prevent something like that? Can’t adults also trip and fall and hurt themselves? So the family of the kid can sue because their kid tripped and broke his leg, but the adult who tripped and broke his leg can’t?

    All these scenarios are worst-first thinking to the core!

    Why does American society look on ALL minors (17 down to 1) as helpless little snowflakes? I think that’s the basis behind all these crazy fears of lawsuits involving kids. As long as our society has that mentality, these kind of lawsuits will be allowed to go forward which will only serve to elevate more fear of lawsuits. Very very sad situation.

  58. Beth February 27, 2014 at 2:41 pm #

    @Amanda Mathews, that is crazy! Seems to me that if your insurance company is so intent on NOT paying this bill, they should be the ones doing the suing. Certainly they would have the resources to do this, much more than the average citizen.

  59. E. Simms February 27, 2014 at 3:29 pm #

    @Amanda Matthews Don’t let the insurance company bully you into paying the bill because the doctor/nurse took a six year old’s accusation at face value.

    You need to bully the ER admin into changing the report.

  60. E. Simms February 27, 2014 at 3:31 pm #

    …or threaten to shame the insurance company on facebook and twitter. With Obamacare, they don’t have captive customers anymore.

  61. Cynthia812 February 27, 2014 at 6:51 pm #

    If you talked about this when it came out, I didn’t see it. A few schools in NZ experimented with eliminating recess rules, and are having great results. http://tvnz.co.nz/national-news/school-ditches-rules-and-loses-bullies-5807957 Seems like someone decided not to worry about the lawyers.

  62. aidian holder February 27, 2014 at 7:18 pm #

    Phillip Howard is part of a concerted effort to deny regular people the ability to use the courts for justice. He’s not a credible source, and I would hope that Lenore would show better judgment in the future about who she sources.

  63. Warren February 28, 2014 at 8:30 am #

    @Amanda,
    Had it been in Ontario, that hospital visit would not have cost you a cent out of pocket. Thus eliminating the need for assigning blame, or lawsuits.

  64. SOA February 28, 2014 at 3:51 pm #

    Amanda: that is nuts. I have never heard of something like that and I deal with insurances a lot. I would suggest going through customer service and talking to them and request an appeal and see what can be done. Sometimes the claim adjuster just messed up with the original filing of the claim and if you talk to someone they can fix it. I can’t see that being right.