The 1990’s experienced a torrent of legislative activity, both at the federal and state level aimed at “curing” the ills wrought upon the business community by a tort system in desperate need of “. . . solution[s] to provide predictability in the product liability system.” “Predictability” has been the term used by proponents of legislative reform intent on “reducing unnecessary legal costs” by installing a vast array of restrictions on the use of the Civil Justice System — such as placing caps on both compensatory and punitive damage awards, abolishing joint liability, eliminating the collateral source rule, limiting a seller’s liability to express warranties or direct negligence, creating comparative fault for product misuse, and setting a statute of repose within the ordinary use-life of most products.
The intent of this article is to inquire about the role that legislatures and courts should have in the evolution of tort law in this country. While certainly not intended as an all encompassing analysis, it is a goal of this paper to provide a fresh look at the issues that the new millennium will present to tort victims and the business community faced with defending civil lawsuits. While the call for tort reform has been sounded in both Congress and state legislatures across the country, and will surely serve as a political issue in the up-coming national elections, the necessity for reform and the scope of reform remains largely debatable. It is self-evident that most legal scholars and courts have resolved the notion that legislation in the area of tort reform can meet constitutional muster — if written correctly and substantively warranted. The present analysis looks not so much at the question whether such legislation can be written, but rather it looks at the question whether such legislation should be written, and if so where should the “line” be drawn between legislative tort reform and judicial control of stare decisis.
This analysis looks at the historical role of tort law, how it has evolved in the United States in conjunction with Constitutional principles, and whether societal or political changes in our landscape should serve as a barometer for the evolution of tort law. Then, we review some of the legislation at issue and how the judiciary has or will respond to these changes; and, finally we seek to answer the perplexing question whether duty and responsibility belongs in the hands of elected officials or the American Judicial System.
What is the Relationship Between The Common Law and Tort Law?
Cicero wisely stated that “the good of the people is the greatest law.” The philosophical dilemma is who should be charged with “knowing” or crafting what is good for the people? Accepting as true, that law exists for the purpose of establishing or preserving equal justice for all our citizens, then the primary goal of the common law should be to secure a place where everyone has a workable venue to right wrongs. Many have written of the nature of tort law, and the historical predicate for its role in American Jurisprudence. Our system of justice has, from its earliest days, embraced the responsibility of government to protect our right to civil reparation for harm caused. In Marbury v. Madison, Chief Justice John Marshall reaffirmed the predicate upon which the American Civil Justice System was founded:
“the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”
The common law, and tort law specifically, represents the principles and rules of law related to the security of persons and property, which has been developed and derived through judicial decisions. Tort law then is a child of the common law. It is the body of law establishing and defining legal duty, fault, and damages recoverable when someone is harmed by legally cognizable action or inaction of another. These principles and rules of law are predicated upon stare decisis, rather than specific declarations of the legislature (although legislative enactment can help define a tort action). The doctrine of stare decisis is one of policy, which acknowledges the importance of precedent which is intended to provide predictability, security and certainty. It is the judicial philosophy embracing the notion that rights once acquired should not be easily removed.
At its base, the common law serves as an evolving constitution of civil rights. Tort law is, therefore, intended to secure the individual’s power to question how he or she has been treated or mistreated by another. And, our court systems have evolved to provide checks and balances over other branches of government, which may, on occasion, unreasonably modify or alter these rights. The U.S. Constitution and the state constitutions are intended to protect us from “our own best intentions.” Power is divided among these branches of government to prevent the temptation to place power in one location as an expedient solution to the crisis of the day, or to rely upon one branch of government as the only voice for defining the common good.
How Has Products Liability Law Evolved?
Products liability negligence law has its modern origins in the writings of Justice Cardozo who, in 1916, authored MacPhearson v. Buick Motor Co.. That decision caused the common law of tort liability to extend a product manufacturers’ duty to those persons who have suffered injury or death regardless of contractual privity, when the product’s design or manufacture places someone in peril of life and limb because of the negligence of the manufacturer. Almost twenty years later, the Washington Supreme Court extended this notion of product tort liability by finding that a manufacturer who misrepresents the character or quality of a product may be held legally responsible even if it was not negligent.
By the 1950’s and early 1960’s, there had developed a school of thought that traditional theories of negligence were inadequate to afford necessary protection to the consumer. This concern arose from cases in which consumers were injured by products that contained manufacturing defects. In such cases, the product typically had been marketed in a dangerous condition that deviated from the manufacturer’s design specifications because of some error occurring during the manufacturing process. In view of the complexity of modern mass production systems utilized by manufacturers, it was believed that it would be difficult if not impossible for the plaintiff to identify at what point along the assembly line the manufacturer had been negligent. Thus, the doctrine of strict liability was devised to alleviate the plaintiff’s evidentiary burden in cases involving manufacturing defects. This new theory of recovery — which was then extended to design defects — was distinguishable from negligence in that it focused not on the reasonableness of the manufacturer’s conduct but rather on the condition of the product itself. By relieving the plaintiff of this evidentiary burden, the theory of strict liability which continued to require proof of defect, would shift the loss from the consumer to the manufacturer which would spur product safety and spread the financial loss to those who were better capable of absorbing the cost.
Modern tort liability, and its evolution through the early 1970’s, has sought to provide legal remedies and legal defenses that remain consistent with both economic and societal attitudes toward corporate and personal responsibility for harm, injury and death. Starting in the mid-1970’s and continuing until today, both big business and academia have spent an inordinate amount of money and effort to change what has been perceived as the excesses of tort law. These factions have sought to alter the landscape of the common law so that the role of tort law is relegated to deter undesirable behavior rather than foster fair compensation and/or financial punishment for intentional wrongdoing.
These efforts at reform have primarily resulted in legislative enactments, which have modified significant aspects of the common law such as joint and several liability and caps on damages.
Rule of Law and The Role of Legislators and Courts
One of the most reassuring attributes about the common law has been its predictability. Despite constant change in the personnel called upon to police and interpret the law, both consumers and businesses have known for many years what can be expected from the law. Nevertheless, times change, people’s attitudes evolve, and the expectations of our society change with time. Our democratic system allows for the rule of law to reflect what the people believe is good. Philosophically, “good” should not change with time; however, pragmatically, it is quite obvious that no truism in social science, like the law, remains unchangeable. The struggle, therefore, has been over the extent to which courts versus legislators should dictate how the common law changes.
It seems almost illogical to assert that only courts are competent to judge what the common law of tort liability should be. Nevertheless, whenever broad, pervasive modifications are made to a body of common law, the courts must address the logic and purposes served — so that justice is delivered even-handily. It is too easy to “fix” the perceived social or economic crisis of the day with legislation and not consider its broader societal implications in the context of legal history and social justice. And, it is the duty of courts to uphold their respective state constitutions, and find statutes to be unconstitutional, even where legislative pronouncements represent the voice of the community; after all, courts must realize that legislative preferences are transitory while constitutional principles are both enduring and fundamental.
Depending upon the scope and course of a state’s Constitutional provisions, or the scope of the Seventh Amendment of the U.S. Constitution, the proper role of the legislature is to enact legislation that provides appropriate protection for all the populace, and the role of courts is to determine the “legislative power” to enact changes to the law. Inevitably, it is the courts task to determine whether legislation comports with the principles of separation of power, the integrity of each branch of government, and the constitutional rights of citizens.
Historically, courts have acknowledged that the determination of the quantum of damages in a common law action is uniquely a jury issue. Nevertheless, courts have also observed that a jury’s analysis and conclusions are subject to judicial review — despite the Seventh Amendment to the Constitution. Certainly, it would strain credibility to assert that a victims right to unliquidated damages is not a question of fact under the common law. Nonetheless, access to court does not determine, nor does it necessarily guarantee any substantive rights of recovery.
The oddity of these conclusions is that common law tort actions have always involved two fundamental subjects: (1) who if anyone is legally responsible for a plaintiff’s injury and (2) the extent of the injury and compensation to be awarded. If legislators are free to restrict and/or eliminate either of these common law privileges, then what has become of the Seventh Amendment? Despite these almost undeniable observations, the truth is that change by legislative fiat is occurring across the Nation.
Legislative Pronouncements and Judicial Response
Tort reform seeking to limit financial exposure for harm caused has been going on for the past two decades. Depending upon the scope of legislative enactment, this movement has had mixed success in our courts. In 1997 and then in 1999, the upreme Courts of Illinois and Ohio struck down very broad legislative efforts to change major tort common law principles. In Ohio, the Court found unconstitutional the following legislative provisions:
the re-enactment of statues and rules relating to tort and civil actions previously found unconstitutional.
- a 15 year statute of repose for actions arising from defective and unsafe conditions of real property and products because of constitutional guaranteeing a right to a remedy.
- a 6 year statute of repose governing malpractice claims other than medical claims based upon a constitutional guarantee of right to a remedy.
- statutory enactments pertaining to court procedural matters based upon separation of powers principles.
- statute abrogating common law collateral source rule and creating a post-verdict setoff for collateral payments and allowed reduction of amount of compensatory damages by amount of collateral payment violated due process clause.
- limits on punitive damage awards by juries violated right to jury trial established by State Constitution.
- caps/limits on non-economic damages were unreasonable and arbitrary and therefore violated the due process clause of State Constitution.
In the Illinois case, the primary arguments in favor of legislative tort reform were that the legislature had the right to change the common law and that the changes made were needed to control both escalating and out of control litigation costs. While the Illinois Supreme Court was of the opinion that it was not entitled to judge whether or not the legislative provisions were wise, it was certainly responsible to determine its constitutionality. Probably the most interesting philosophical analysis made by the Illinois Supreme Court was that the various tort reform measures were unconstitutional because they represented “special legislation” — a concept disallowed by the State Constitution. Similar constitutional provisions are found in most state constitutions. Specifically, the Illinois Court reminded the legislature that:
“‘ Governments were not made to make the ‘rich richer and the poor poorer’, nor to advance the interest of the few against the many; but that weak might be protected from the will of the strong; that the poor might enjoy the same rights with the rich; that one species of property might be free as another -that one class or interest should not flourish by the aid of government, whilst another is oppressed with all the burdens.”
Addressing the legislative effort to put limits on the monetary recovery for non-economic injuries, the court began by acknowledging that it did not disagree with the notion that such damages are difficult to quantify. Nevertheless, it did not follow from that observation that caps on these damages would make the process any less arbitrary. Since there is universal agreement that the common law is intended to make an injured plaintiff whole, by allowing for fair compensation, any limitation of this right is without legal justification.
” The legislature is not free to enact changes to the common law which are not rationally related to a legitimate government interest. The General Assembly’s authority to exercise its power by altering the common law and limiting available remedies is also dependent upon the nature and scope of the particular change in the law.”
While not currently a “favored” legal basis for the judiciary’s rejection of some legislative tort reform, it is vitally important to remember that a tort action for money damages is a basic common law privilege and one that is protected under the Seventh Amendment of the U.S. Constitution — and by analogy by every state constitution containing the same protective provision.
Constitutional Protection of The Common Law
At the heart of this reform movement is the notion that legislative bodies are free to preempt the common law. Our traditional state tort law is at risk from the general acceptance of the preemption doctrine. Year after year, courts have been increasingly called upon to decide whether an Act of Congress or state legislation was intended, or appropriately couched to preclude or restrict civil liability at common law. Because common law actions have traditionally been preserved and entrusted to the common law, which was clearly incorporated into each states’ constitution, there should be a higher scale of analysis employed in order to protect state common law actions for damages against preemption. It seems relatively easy to provide this protection if courts will confirm that common law actions are basic civil rights and consequently they should be given greater protection then more contemporary statutory provisions. Further, considering the very incidental regulatory effect that common law actions have on human conduct, ambiguous preemptive language attempting to preempt some state regulation would not effect our citizens fundamental civil rights, and should be discouraged. This approach would be one of a strict textualist and would ensure that Congress and state legislators meet a heavy burden before allowing for the elimination of state common law.
Who Should Be Charged With Altering The Common Law?
It is not disputable that our current legal environment allows for courts and legislatures — to different degrees — to change the common law. Not too long ago, it was the courts of this country that adopted strict products liability as an alternative to negligence theories. While some may have charged that this represented “judicial activism” at its worst, there was never any doubt that the judiciary had the power to amend the common law to provide for this remedy. It is also obvious that legislatures have been given varying degrees of latitude to change the common law, including extensive Workers’ Compensation plans, the abolition of joint and several liability, and the advent of the “seat belt defense.” What it boils down to, therefore, is whether the particular change in the common law was based originally upon historical legislative enactment or judicial pronouncement. And, it is obvious that the soundness of new legislation is often based upon what is politically correct for the particular court faced with a challenge to reform legislation. Given these assumptions, then the true question is philosophical not legal: Who is best suited to make changes in the common law that will have the most satisfying effects, over time, on the consuming public? After all, government at its base is designed to provide for the “common good” of its citizens. That “good” is judged daily by all of us, and it is gauged and reevaluated by legislators and courts whenever competing demands present themselves. The most consistent means of predicting and controlling human behavior bent on causing injury to others is to provide judicial redress. Limiting access or the scope of this redress is always dangerous. Nevertheless, legislators are also empowered to study and change the law to address the competing and changing needs of society. Unlike any other court system in the world, the American Civil Justice System provides opportunity and protection to its citizens through the jury system. Access is meaningless if the traditional remedies we have come to expect are taken away. Human value is demeaned whenever we seek legislative means to place a value on life and limb. Our fellow citizens should be left to judge the value and extent of injury, undaunted by legislative fiat. Personal and corporate responsibility for tortuous harm should not be legislatively protected because it may be costly. There is nothing more costly then needless injury or death. The common “good” requires that these basic rights be protected by both the legislature and the court system.