'Tort reform' is trouble for consumers
By MARTIN DYCKMAN
Published February 6, 2005
TALLAHASSEE - Dillard's is going to pay $15-million, as you read last week, for the unsafe escalator in St. Petersburg that mangled a little girl's hand. The company settled in the well-founded fear that the jurors would award even more when they totaled up punitive damages. One of the jurors put it just right when she said, "We did our job, didn't we?"
They surely did. But the sad part is that there would have been no job for them to do had other people been doing theirs. What's worse, that $15-million may not be enough to make them all do it.
The only lesson that the business lobbies seem to learn from such cases is to make it even harder for victims to sue. At the moment, Associated Industries is urging your legislature to take up a particularly diabolical "tort reform" bill that begins with a provision immunizing cities and power companies for crimes committed under burned-out street lights "unless such liability was expressly assumed by written contract."
There are 30 other provisions, some of them even worse, in this pail of garbage.
A case could be made that the power company ought not to be blamed for a robbery, rape or murder that might have happened anyway. But conjecture is only that, while the matter of the light remaining unrepaired is a fact. Tell me, please, what is there other than the fear of lawsuits to make a utility monopoly promptly replace a burned-out light?
The Legislature could try this alternative: A fine of $100,000 for each night the light remains out after the company is notified. Hurricanes and other emergencies excepted, of course. And none of the fine could be charged to the rate base, meaning stockholders would have to pay it.
But I have probably never written anything as far-fetched as that supposition. What the Legislature really thinks about public safety can be seen in this: The administrative fine for escalator safety violations is just $1,000 per occurrence. That's not much more than your typical corporate business lunch.
And it was not until the civil trial, more than two years after little Kerriana Johnson lost three fingers in what was not the first escalator accident at the St. Petersburg Dillard's, that the Department of Business and Professional Regulation got around to investigating the company's sham self-inspections.
Damage litigation is in many ways an inefficient, hit-or-miss remedy for the preventable perils of modern life. But it's all we've got.
Here is my idea of real tort reform, which of course I do not expect any lobbyist to submit or any legislator to file: When someone is hurt or killed on account of willful negligence in the marketplace, the people responsible should be sent to jail just as if they had been driving drunk. That should go all the way up the ladder to whatever corporate executive should have made it his or her business to ensure the public safety.
They have a law like that in Japan, by the way. It is no coincidence that Japan has fewer lawyers and lawsuits.
In the sanguine world of economics, the possibility of losing a damage suit does not hold enough terror for the directors and executives. It's a cost of business, like any other.
The drunk, in my view, is less culpable than the coldly sober executive who calculates that it's cheaper to pay off a few widows and orphans than to build a safer car, or who decides to leave a profitable drug on the market in the face of overt warnings that it is killing some customers.
Speaking of "tort reform," there ought to be condign punishment for editors who allow that phrase into their newspapers except within quotation marks or in opinion pieces like this. Its unqualified use in what is supposed to be a straightforward news story prompts the question of whether the proposal in question is really a reform. There are unloaded substitutes such as "civil litigation revision." That may lack pizazz, but it's accurate.
The supposed "liberal media" (speaking of buzzwords) can be Silly Putty in the hands of phrasemakers, as in using "prolife" where the neutral term would be "antiabortion." "Prochoice" instead of "abortion rights" is the other side of that coin.
A headline in the newspaper here the other day read, "Bush sets his sights on rescuing Social Security," which of course raised the questions of whether it really needs rescuing - and, if so, from what?
The word should have been "changing." But at least there was no version of "reform."
Martin Dyckman's e-mail address is email@example.com
[Last modified February 6, 2005, 00:22:15]
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